SZHVX v Minister for Immigration

Case •

[2006] FMCA 519

•

5 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVX & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 519
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant – where Applicants did not attend Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 474

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SJSB and the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125

First Applicant: SZHVX
Second Applicant: SZHVY
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3701 of 2005
Delivered on: 5 April 2006
Delivered at: Sydney
Hearing date: 5 April 2006
Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Mr Jayawardena
Counsel for the Respondent: Ms Mason
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The title of the First Respondent is altered to Minister for Immigration and Multicultural Affairs.

  2. There be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal signed on 12 October 2005 and handed down on 8 November 2005.

  3. There be an order in the nature of mandamus remitting the Applicants’ applications for protection visas to the Refugee Review Tribunal for determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3701 of 2005

SZHVX

First Applicant

And

SZHVY

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on the 12th October 2005 and handed down on the 8th November 2005.  The Applicants are citizens of India who applied for protection visas on the 21st April 2005.

  2. After those visas were refused by a delegate of the Minister on the 6th July in that year they sought a review of the delegate's decision in the Refugee Review Tribunal. 

  3. Despite the fact that the Tribunal wrote to the Applicants inviting them to attend a hearing, the Applicants did not attend even though they had advised the Tribunal by fax that they wanted to give oral evidence and to call a witness. As there was no explanation for the absence of the Applicants, the Tribunal exercised its power under section 426A of the Migration Act to make its decision on review without taking any further action to enable the Applicants to appear before it.

  4. The Tribunal noted that the First Applicant husband had claimed a well-founded fear of persecution in his native country for reason of his political beliefs. In particular, he stated that after the Congress Party won national elections, he made contact with that party, although he was an activist with the BJP, that his business was destroyed by BJP thugs. He also claimed persecution for religious belief having been threatened by Muslim fundamentalists who tried to kill him because of his Hindu belief. He also referred to the Tsunami having affected his business but I am not of the view that a Tsunami is a Convention ground.

  5. The Tribunal, when proceeding to deal with the application in the absence of the Applicant noted at page 78 of the Court Book that a number of relevant questions were left unanswered. The Tribunal divided those questions into three distinct categories. The Tribunal went on to say at page 79 of the Court Book:

    That even had the Applicant been able to satisfy the Tribunal on those points; the Tribunal would have also needed to ask the Applicant why he could not relocate elsewhere in India given that the country is large and movement within India easy.

  6. Accordingly, the Tribunal did not accept that there was a real chance of the Applicant suffering harm amounting to persecution, either for reason of his religion or his political opinion or for any other convention reason and affirmed the decision not to grant protection visas.

  7. For the Applicants, Mr Jayawardena, solicitor, raised a point conceding the precarious position in which Applicants place themselves when they do not attend a hearing of the Refugee Review Tribunal but he submitted that the Tribunal committed jurisdictional error by failing to comply with s.424A(1)(a) of the Migration Act contrary to the findings made by the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the Full Federal Court decision of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.

  8. Whilst his submissions were directed at the third point on page 78, I have given consideration to all three of the categories of questions referred to by the Tribunal Member.  The first category was that:

    It is apparent that the claims made in the Applicant's protection application conflict with statements made in his original visitor visa application. Ordinarily this would have counted against his general credibility.

  9. I was concerned about whether there may have been a breach of section 424A in respect of that finding but as Ms Mason for the Respondent Minister quite properly pointed out; the Tribunal went on to say:

    However, the person who advised him - - -

    Meaning the Applicant:

    - - - at the time of his primary application for protection is no longer a registered Migration Agent and it is hypothetically possible that there is an acceptable explanation for these discrepancies. I will therefore give this issue no importance or weight.

  10. To my mind, that statement by the Tribunal, as counsel for the Respondent has pointed out, makes it clear that the information referred to in that paragraph was not a reason or a part of the reason for the Tribunal affirming the decision of the delegate. 

  11. The second category has been described as the Applicant's claim to be or to have been a BJP activist and to have fallen into disfavour as a result of making contact with the Congress Party after it won the national elections in the interests of his business.  The Tribunal went on to say:

    I would have liked to ask the Applicant why it was necessary to make these contacts given that Gujarat is a BJP stronghold. (The member of the National Parliament for Ahmedabad, the Applicant's last place of residence in India, is from the BJP as is the Chief Minister of the State).

  12. In my view, the information volunteered by the Tribunal relating to the member of the Parliament for Ahmedabad and the Chief Minister of the State of Gujarat appears to be information that is specifically about two other persons even though it is not specifically about the Applicant and it does not come within the protection given by subsection (3), paragraph (a) of s.424A of the Migration Act.

  13. The third category referred to by the Tribunal, also on page 78, is this:

    Thirdly and finally I would have wanted to know why the Applicant feared attacks from Muslims given that Gujarat is an overwhelmingly Hindu state.  (Indeed it has been notorious in the past as the scene of ugly attacks by Hindus on Muslims rather than the other way round).

  14. This reference to the notoriety of Gujarat as a scene of ugly attacks by Hindus on Muslims, like the information about the persons in the second category, is entirely unsourced information. The decision does not refer to any Independent Country Information and there is no indication as to where it has come from. The concern that I have is that in each case this information volunteered by the Tribunal Member is information which is the reason or part of the reason for affirming the delegate's decision and as such should have been put to the applicant in writing under the provisions of s.424A(1).

  15. Ms Mason for the Respondent Minister submits that these passages are in a similar category to that referred to in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 where their Honours said at 425:

    In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing.  The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want to an explanation about those matters.  In its reasons for decision the RRT said that in view of the first appellant's failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason).  As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason and returned to Bangladesh, it was bound to affirm the decision of the Minister's delegate to refuse to grant the first appellant a protection visa.

  16. Indeed, that situation is so often the case in many matters where an Applicant has not attended the hearing of the Tribunal. To my mind, however, the decision in NAST can be distinguished as in fact can SJSB and the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125 in that this is more than a Tribunal just saying that the Applicant has not provided sufficient information. It is a situation where the Tribunal has volunteered information, not doubt known to the Tribunal Member as a result of dealing with other cases relating to that country.

  17. In my mind, it is a case of the Tribunal Member going one step too far or saying too much. To my mind the decision in NAST allows for a Tribunal Member to say that he or she would have liked to ask the Applicant particular questions about certain subject matter and having left it at that. In that case, the absence of information would not be sufficient to allow the Tribunal to be satisfied that the Applicant met the criteria for a visa under sub-section (2) of s.36 but because the criteria had not been met or there was insufficient information under s.65, the Tribunal would have been obliged to dismiss the application, to refuse to grant the visa. 

  18. There is a similar problem with the relocation issue referred to by the Tribunal on page 79 of the Court Book and Ms Mason of counsel drew my attention to that. Her view was that even in the alternative if the Court was not satisfied in respect of the matters in which I am not satisfied, that there was the relocation issue. But again, this is a case of the Tribunal Member having said too much, having gone one step too far.  The Tribunal said:

    I would have also needed to ask him why he could not relocate elsewhere in India.

  19. If the Tribunal had left it at that stage, to my mind there would have been no error. Again, however, the Tribunal Member has volunteered information to the effect that the statement has been made:

    Given that the country is large and movement within India easy.

  20. There is no source to that material. I am prepared to concede that it is common knowledge that India is a large country. I am not prepared to concede that it is common knowledge that movement within India is easy and there is no source for this information. In each case the volunteering of the information in a way that is contrary to what the Tribunal said the Applicant's assertions were, to my mind establishes that information as information that forms part of the reasons for the Tribunal affirming the decision not to grant protection visas.

  21. I am not satisfied that any of that information attracts the protection of the exception in sub-section424A(3)(a) and it is certainly not information that the Applicant gave for the purpose of the application and it is certainly not non-disclosable information.

  22. To my mind there is a breach of s.424A (1) of the Migration Act and the application must be granted.

  23. I might comment that it is a rare case indeed where Applicants who do not attend a Tribunal hearing are successful in these circumstances but in my view there is a clear breach of s.424A.

  24. I also note that the First Respondent Minister now has a change of title to Minister for Immigration and Multicultural Affairs and I propose to make an order noting that. I am obliged because I have found a jurisdictional error, to make orders in the nature of certiorari and mandamus and accordingly I make the following orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  12 April 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0