SZIWC v Minister for Immigration - [2006] FMCA 1207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1207

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in India – interlocutory dismissal of show cause application – no arguable case disclosed.

Federal Magistrates Court Rules 2001, (Cth)
Migration Act 1958 (Cth), s.424A

First Applicant:

SZIWC

Second Applicant:

SZIWD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1431 of 2006

Judgment of:

Driver FM

Hearing date:

21 August 2006

Delivered at:

Sydney

Delivered on:

21 August 2006

REPRESENTATION

Solicitors for the Applicant:

Mr C Jayawardena

Solicitors for the Respondents:

Ms L Gazi
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and paragraph 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1431 of 2006

SZIWC

First Applicant

SZIWD

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 20 April 2006. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. They are from India and made claims of persecution which ultimately were based on assertions of political persecution.
This matter came before me on the first court date on 14 June 2006. At that time it was not apparent to me whether the application filed on 18 May 2006 disclosed an arguable case. For that reason I directed that the application be listed for hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I also made orders for the filing of a book of relevant documents by the Minister and any amended application and supporting affidavit evidence directed to the issue of whether the application disclosed an arguable case.
A book of relevant documents was filed on 20 June 2006. That was after the date specified by me in order 1 made on 14 June 2006. Nevertheless, I accepted the court book as evidence for the purposes of today’s show cause hearing. I also permitted Mr Jayawardena, who appeared for the first applicant, to file in court an affidavit by the first applicant in support of the show cause application. I received that affidavit as evidence for the purposes of today’s show cause hearing without the need for the applicant to be cross-examined. I note that he was not present in court today and hence would not have been available for cross-examination.
The show cause application filed on 18 May 2006 asserted notification of the RRT decision on 20 April 2006. On that basis I find that the application was filed within time. It sets out three grounds. The first is an assertion that the RRT exceeded its jurisdiction in finding that the applicant’s level of political interest was not such that he would be motivated to be politically active. Secondly, the RRT is said to have erred in law because of making a contradictory finding that the applicant was a supporter of the BJP but at the same time stating that the applicant was not a political activist or member of the BJP. Thirdly, as best as I can understand the ground, the applicant asserts that the RRT was unreasonable by failing to assess correctly why additional information given in March 2006 did not establish his claims of persecution,
The applicant failed before the RRT essentially because he was not believed. On 22 March 2006 the RRT wrote to both applicants (to notify of information that was considered at the time to be potentially the reason or part of the reason for deciding that they were not entitled to protection visas)[1]. Among this information was the absence of any claim of political activity in the first applicant’s protection visa application. The first applicant responded by letter dated 23 March 2006[2]. In that letter the first applicant stated that there were problems with the protection visa application which were the fault of his migration agent and that he did indeed have a claim of political persecution based on his support for the BJP. The presiding member reproduced the terms of the RRT’s letter and considered the applicant’s reply in the RRT decision[3]. However, the RRT was unimpressed with the applicant’s claims and, in particular, unimpressed with the applicant’s evidence given at the hearing conducted by the RRT.
[1] court book, page 79
[2] court book, pages 82 and 83
[3] court book, pages 95-97
The critical findings by the presiding member are set out on page 99 of the court book. The presiding member, relevantly, accepted that the principal applicant supports the BJP along with millions of others in the State of Gujarat but did not accept that the applicant had any political profile even as a low level organiser. The presiding member found that the applicant’s evidence given at the hearing as improvised and inconsistent. The presiding member took into account the complete lack of any reference to politics in the applicant’s protection visa application[4]. The presiding member stated on page 101 of the court book:
In sum[mary], the Tribunal does not accept that the Applicant has suffered past harm for reason of his political opinion, and the material before the Tribunal does not reveal any other factors indicating he faces a real chance of prospective harm for this or any other Convention reason.
[4] court book, page 100
The question for me to answer today is whether the application before the Court raises an arguable case of jurisdictional error. When the present proceedings began the applicant was self-represented, although I note that his affidavit in support of the application was witnessed by Mr Jayawardena who now represents him. Mr Jayawardena filed a notice of appearance on 14 June 2006. The applicant’s affidavit seeks to explain his difficulties in making a coherent protection visa claim and takes issue with the RRT’s findings as set out in the RRT decision. To the extent that the affidavit supports the show cause application at all, it appears to bear upon the second ground of alleged inconsistent findings. The difficulty I have with that assertion is that I see nothing inconsistent in the RRT findings. It appears to be a perfectly straightforward finding that while the applicant was a supporter of the BJP he was not an organiser or anyone with any political profile. Even if the inconsistency as asserted could be established on the facts it would not amount to jurisdictional error. I see nothing in the show cause application as illuminated by the first applicant’s affidavit and the court book which points to any jurisdictional error.
In the course of oral argument Mr Jayawardena sought the opportunity to file an amended judicial review application within seven days asserting a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). That application would have asserted that the RRT erred in relying upon the form and content of the applicant’s protection visa application in particular with reference to the absence of any claim of political involvement in that protection visa application[5]. I pointed out to Mr Jayawardena that the letter written to the applicants by the RRT on 22 March 2006 did raise that issue and hence there did not appear to be any issue of a breach of s.424A. Mr Jayawardena submits that because the letter does not in terms claim to be a letter written under s.424A it cannot be taken to be such a letter. I disagree. The first paragraph of the letter states that at the RRT hearing held on Wednesday, 22 March 2006 the applicants were given information that would, subject to any comments the applicants may make, be the reason or part of the reason for deciding that they were not entitled to a protection visa. Those words reproduce the language of s.424A(1) and establish clearly, in my view, that the letter was written in compliance with the perceived obligations under that section. I note the presiding member, in his reasons at page 95 of the court book, describes the letter as a s.424A letter.
[5] court book, page 100
It is, in my view, not arguable that in order to comply with s.424A a letter written in pursuance of the obligations under that section must state expressly that the letter is written pursuant to s.424A. In assessing whether a tribunal has complied with its obligations under s.424A it may be necessary to construe a letter to determine whether it is written pursuant to that section but the issue, if there is one, of whether it meets the obligation imposed on the RRT is resolved by examining what the letter does rather than what it claims to be.
For that reason I will not grant leave for the judicial review application to be amended to raise the postulated issue of a breach of s.424A.
I find that the show cause application before the Court does not disclose an arguable case. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
Costs should follow the event. The Minister seeks an order for costs in accordance with the Federal Magistrates Court Rules and scale. Mr Jayawardena did not wish to be heard in opposition to such an order. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500, in accordance with rule 44.15(1) and paragraph (1)(b) of Part 2 to Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 August 2006