SZIOM v Minister for Immigration

Case •

[2006] FMCA 1588

•

12 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1588
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas – applicants are citizens of India claiming fear of persecution by Muslim extremists – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A
Applicant: SZIOM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 918 of 2006
Judgment of: Scarlett FM
Hearing date: 12 October 2006
Date of last submission: 12 October 2006
Delivered at: Sydney
Delivered on: 12 October 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms Clegg
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicants are to pay the First Respondent's costs fixed in the sum of $3,500.00. 

  3. I allow the four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 918 of 2006

SZIOM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that was signed on 13th February and handed down on
    7th March 2006. The Tribunal affirmed a decision by a Delegate of the Minister not to grant protection visas to the two Applicants.

  2. The Applicants now seek orders from this Court in the nature of certiorari, prohibition and mandamus. The effect of these orders, if I were to grant them, would be to quash or set aside the decision of the Refugee Review Tribunal, to prohibit the Minister from acting on the decision to refuse a protection visa to the Applicants and to send the Applicants application back to the Tribunal for determination according to law.

Background

  1. The background to this application is that the Applicants are a husband and wife who are citizens of India. They travelled to Australia on
    11th July 2005.  They applied for Protection (Class XA) visas on
    10th August of that year but a Delegate of the Minister refused those applications on 27th October. The Applicants then sought a review of that decision from the Refugee Review Tribunal.

  2. They lodged their application for review at the Sydney Registry of the Tribunal on 13th October 2005.  They gave a post office box number in Griffith as their address for correspondence.  The Tribunal wrote to the Applicants on 22nd December 2005 advising them that it had considered the material before the Tribunal in relation to their application but was unable to make a decision in their favour on that information alone. The Tribunal invited the Applicants to attend a hearing at 1:00pm on Wednesday 25th January 2006.

  3. The First Applicant, the husband, attended the hearing and gave evidence with the assistance of an interpreter in Gujarati language. 
    He told the Tribunal that his wife, the Second Applicant, had agreed that he could speak on behalf of the two of them.  In his application, as the Tribunal noted, only he has made specific claims under the Refugees Convention and his wife relied on her membership of his family.

  4. His claim is that he was a Hindu and had been secretary of the Ganesh Temple in Mumbai in 1992 when it had been attacked during the Ganapati festival. During this violent clash four Hindus and three Muslims were killed and many other people were injured. The police investigation revealed that terrorists from the Dawood Ibrahim group were involved.

  5. A member of a fundamentalist Muslim terrorist group accused the Applicant of being responsible for the deaths of two of the Muslims and later threatened to kill both the Applicant and his mother. Sadly, after certain riots and the destruction of the Babri Mosque on
    6th December 1992 the applicant's mother was murdered. She was found murdered in the family home.

  6. The Applicant said that an anonymous telephone caller had said that this was a revenge taken by the Dawood Ibrahim group. The police started looking for the murderers involved but no arrests were made.   The Applicant left home in January 1993, stayed in Delhi until June 1996 and so he and his wife moved to various parts of India to avoid persecution although received threatening calls on other occasions. 

  7. He claims that he does not wish to return to India because of fear of harm by Muslim fanatics or terrorists. He claimed that the Indian authorities could not protect him. The Applicant told the Tribunal that he still had relatives in India and said that he had earned an income after 1993 doing a variety of work.  He had belonged to a political group in India called the Ganesh Mandeir from 1988 to 1992 but was not a member of any other political group.

  8. The riot in 1992 which had such disastrous consequences had caused violence to him and that he received a cut to his right leg. His late mother had given evidence to the police that she could identify the attackers. He said that the criminals concerned had come to his house just after his mother's death and placed pressure on him. 

  9. The Tribunal considered evidence from other sources, including the United States State of Department International Religious Freedom Report 2005 and a summary of the Tribunal's findings appears on pages 67, 68 of the Court Book.  The Tribunal, also on pages 69 and 70 set out what the Tribunal could discover about the Dawood Ibrahim group about which the Applicant had complained.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons, which are relatively brief, are set out on pages 70 and 71 of the Court Book. The Tribunal was satisfied that the Applicants were nationals of India and that the First Applicant was a Hindu. The Tribunal was satisfied and found that Hindus in India do not have a well founded fear of being subjected to serious harm and systematic and discriminatory conduct simply because of their religion.

  2. The Tribunal did accept that the Applicant had been praying at a Hindu Temple in 1992 when the violent incident occurred and did accept that the Applicant's mother was killed in December of that year, although the Tribunal expressed doubts about the motives of the murderers. 
    The Tribunal doubted that after his mother's death the Applicant did live anywhere else than Mumbai but did accept the Applicant received telephone threats in 1992 and 1993 and continued to fear harm from people being members of a criminal gang.

  3. The Tribunal accepted that the Applicant was not harmed after 1992.   The Tribunal set out that the Applicant had given unequivocal oral evidence that he had returned to and resided at his original home address in Mumbai in 2003 and remained there with his wife until he left India in 2005. The Tribunal did not find that consistent with his claim to have a fear of serious harm and expressed the view:

    In my view if anyone had been motivated to locate, threaten or harm him in this period they had a real opportunity to do these things.

  4. The Tribunal was not satisfied that there was a real chance of the Applicant being seriously harmed by members of the Dawood Ibrahim gang or anyone else. It was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore does not satisfy the criterion set out in sub-s.36(2)(a) of the Act for a protection visa.

  5. The Tribunal noted that no specific Convention claims were made by or on behalf of the Applicant wife and the fate of her application depends on the outcome of the First Applicant. The Tribunal found that the Second Applicant could not satisfy the alternative criterion set out in sub-s.36(2)(b) of the Act and affirmed the decision not to grant protection visas to both Applicants.

The Application for Judicial Review

  1. The Applicant commenced proceedings for judicial review on 4th April 2006. He also had forwarded to the Respondent's solicitors an amended application which appears to have been received by them by fax on
    10th October this year. Counsel for the First Respondent Minister,
    Ms Clegg, drew my attention to the existence of this document which was not on the Court file. 

  2. The Applicant was not legally represented, although had had the benefit of some legal advice from Mr Chandra Jayawardena, solicitor, before this time. In the circumstances I granted leave for the amended application to be file in Court and took the view that I should consider the claims in both the original application and the amended application.

  3. There are three grounds set out in the original application. First, that the Tribunal exceeded it jurisdiction due to its finding to the effect:

    In my view, if anyone had been motivated to locate, threaten or harm him -

    meaning the Applicant -

    in this period, they had a real opportunity to do these things.

  4. There is no particularisation as to how that comment makes up a jurisdictional error by way of an excess of jurisdiction.  It is a reaction to what counsel for the First Respondent has described as nothing more than an observation by the Tribunal explaining the Tribunal's reasoning behind the finding in the next paragraph.

  5. In any event, in my view there is no explanation given either in the application or the amended application or written submissions provided which make it clear as to how such a factual finding could in some way take the form of a jurisdictional error. That ground has not been made out.  The second ground was that:

    The Tribunal erred in law because of the finding that "no specific convention claims were made by or on behalf of the applicant wife" because the applicant depended on the principal applicant.

  6. The Tribunal certainly proceeded on the basis that the Second Applicant was relying entirely on her claim to be a family member of the First Applicant  and of course if the Tribunal had found that the First Applicant was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore met the criterion under s.36(2)(a), then it would follow that the Second Applicant, the wife, being a member of his family, would meet the alternative criterion under s.36(2)(b).

  7. The application for a protection visa does not set out any claims by the Second Applicant for any separate convention ground, nor does the application for a review by the Refugee Review Tribunal that appears in full at pages 43 to 46 of the Court Book. There is no information submitted to show that the Applicant wife had a separate Convention ground. 

  8. The fact that she elected not to attend the Tribunal hearing and allowed her husband to present her case, does not sit well with a claim that the wife had a separate Convention ground. I note that she has not attended Court today, although that does not in itself have any bearing on whether a jurisdictional error has been made out on the part of the Tribunal. There is no evidence to show the Applicant wife has any separate claim under the convention and her claim rests entirely on her being a member of the family of the First Applicant.  The second ground is just wrong in law because it is wrong in fact.  It must be dismissed.

  9. The third ground is that the Tribunal failed to follow the criteria of a refugee described in Article 1A(2) of the 1951 UN Convention on the Status of Refugees and thereby made a constructive failure to exercise jurisdiction. It says on the Applicant's claims, but it must mean to decide on the Applicant's claims. 

  10. There is no information provided as to how the Tribunal failed to follow the criteria for assessing the claim of either party to be a refugee and at pages 60 and 61 of the Court Book the Tribunal sets out its view of the definition of refugee as defined in Article 1A(2) of the Convention and refers to a number of decision in the High Court of Australia where that definition has been considered and refers also to ss.91R and 91S of the Migration Act.  The Tribunal also refers to four key elements of the Convention definition being:

    First, that an applicant must be outside his or her country; second an applicant must fear persecution; third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition, race, religion, nationality, membership of a particular social group or political opinion; and fourth, an applicant's fear of persecution for Convention reason must be a well founded fear.

  11. The Tribunal goes on to say that:

    An applicant must be unable or unwilling, because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or if stateless, unable or unwilling because of his or her fear to return to his or her country of former habitual residence.

  12. In my view the Tribunal's description of the criteria to be applied when assessing a person's claim to be a refugee, is unexceptionable.  There is no constructive failure to exercise jurisdiction and the third ground in the original application must fail.

  13. I turn to the amended application which was filed in Court by leave today. There are two grounds, both of which are rather lengthy.
    The first alleges that the Tribunal's decision lacked the required satisfaction in terms of s.91R of the Migration Act with regard to the reach chance test of the future persecution. The Applicant submitted the Tribunal failed to assess the real danger the Applicant had from the Dawood Ibrahim gang when it accepted that the Applicant was injured by this gang and his mother was killed by the gang during the communal troubles. This is said to be jurisdictional error.

  14. I am not of the view that it is.  It is not difficult to see why an applicant who claims to have been present and was accepted by the Tribunal to be present at a violent incident in a temple in 1992 when people were killed and injured, which must have been a highly traumatic and upsetting incident for him and his family, and an applicant whose evidence about the murder of his mother was accepted by the Tribunal, could feel aggrieved that the Tribunal has not accepted the rest of his claim as to the fact that he has a well founded fear of persecution for a Convention reason.  The Tribunal accepted that the violent incidents in 1992 occurred. 

  15. The Tribunal has, to my mind, assessed the Applicant's claim on its face and has assessed whether or not there is a well founded fear of persecution in the future. The Tribunal sets out that the Tribunal member asked the Applicant about that and it is clear that there was a significant amount of questioning on that point and that is set out in some detail on pages 65 and 66 of the Court Book.

  16. The Tribunal, to my mind, has assessed the evidence but in the long run has not been persuaded that the Applicant at the time of the hearing of the application faced a real danger of persecution from the Dawood Ibrahim gang or from Muslim fundamentalists or from any other person for a Convention reason.  That ground must fail.

  17. Ground 2 of the amended application is rather baffling in that it alleges that the Tribunal failed to assess the applicant's claim in a:

    Constructive and articulate manner.

  18. As required under s.415 of the Act. Section 415 does not make any reference to any assessment in a constructive and articulate manner and indeed sets out the powers of the Refugee Review Tribunal upon reviewing an RRT reviewable decision.  Sub-section (2) sets out that the Tribunal may do one of four things and sub-ss.(3) and (4) sets out restrictions on why the Tribunal must act if it varies the decision or sets aside the decision and substitutes a new decision.

  19. In my view the Tribunal in affirming the Delegates decision acted in a way that was permitted by sub-s.415(2) of the Act. Sub-section 415(2)(a) says that the Tribunal may affirm the decision. That is exactly what the Tribunal has done. The rest of the ground does not seem to bear any relation to s.415 at all. It is a challenge to the Tribunal's finding that it accepted that the Applicant's mother was killed in December 1992, although the Tribunal had some doubts that the perpetrators' motives were those described by the Applicant.

  20. The Applicant submitted that although the Tribunal accepted that the persecution suffered by the Applicant with the death of his mother looked real, it failed to consider that the motive was explained by the applicant in a passage at page 76 of the Court Book:

    He responded that it was because of his mother's death, although he had had no involvement with them before that.  I put to him that I was also unable to identify a Convention reason for the harm he feared.  He responded that it was true they had told him that he was responsible for killing two Muslims.

  21. The Applicant submits that the Tribunal did not consider that the claim that the death of the mother was in some way due to the killing of two Muslim men during the communal riots and that this was a jurisdictional error. I am not of a view that it is. To my mind it is no more than a challenge to the factual findings of the Tribunal.

  22. Ms Clegg for the First Respondent submits that the ground itself is contradictory in that it alleges that the Tribunal failed to do what the grounds said that the Tribunal said that it had done. I do not disagree with that but in my view the ground does no more than challenge a factual finding or challenge the weight that the Tribunal gave to the accepted fact of the Applicant's mother's unfortunate violent death.  The ground must fail.

  23. Counsel for the First Respondent, Ms Clegg, also drew the Court's attention to a possible error in that the Applicant was not notified of the Delegate's decision prior to filing the application for review in the Tribunal. She submitted that despite the cogency of the Tribunal's reasoning there may be an issue as to whether the Tribunal had jurisdiction to review the decision of the Delegate in the light of the terms of s.412. If there was no jurisdiction on the part of the Tribunal to review the decision of the Delegate at the time the application was made, then strictly speaking jurisdictional error was committed by the Tribunal.

  24. I am not of that view. I have considered the reasons given by the Tribunal that appear at pages 58 and 59 of the Court Book as to why the Tribunal considered it was satisfied that it did have jurisdiction in that it found that each element of s.412 of the Migration Act had been made out. I see no reason to go behind that and in my view there is no jurisdictional error.

  25. In any event, even if there were, I am satisfied that relief should be refused because a finding that the Tribunal did not have jurisdiction to review the Delegate’s decision could only result if the matter was remitted to the Tribunal and the Tribunal found that it previously had no jurisdiction. That would not avail the Applicant at all as indeed it has been submitted that that would be fatal to the Applicant's application for a protection visa because there would be no review of the Delegate's decision available.

  26. In other words, if the statutory law compels a particular outcome, discretionary relief may also be refused. In my view it is not necessary for me to consider that further. I am not satisfied that the Tribunal did not have jurisdiction under s.412.

  27. The Applicants were legally represented at some stage. They were not legally represented in these proceedings. I have considered the decision independently in order to ascertain whether there was some other jurisdictional error not referred to by the Applicants in any of their documents. I am unable to discern any other jurisdictional error.
    If there is no jurisdictional error the Tribunal's decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.

  1. Consequently the decision is not subject to mandamus, certiorari or prohibition as sought by the Applicants and the application will be dismissed. 

Costs

  1. There is an application for costs on behalf of the First Respondent Minister.  The Applicants have been wholly unsuccessful in their claim.  There is no reason to depart from the usual practice that costs follow the event.  I propose to make an order for costs in favour of the First Respondent Minister.  The amount sought, namely $3,500.00 inclusive of counsel's fees, is to my mind a modest sum indeed and well within the range that the Court would consider appropriate.

  2. I note that the Applicant has very little income. I see no reason to doubt him on that point. That is not a ground for not making an order for costs but I will take it into account as far as time to pay is concerned.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  27 October 2006

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

0

Cases Cited

0

Statutory Material Cited

2