SZIWH v Minister for Immigration
[2007] FMCA 588
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 588 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Lay Lat [2006] FCAFC 61 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v SZFDJ [2006] FCAFC 53 Prasad v Minister for Immigration (1985) 6 FCR 155 SJSB v Minister for Immigration [2004] FCAFC 225 SZCIA v Minister for Immigration [2006] FCA 238 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZIWH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1470 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Punjabi interpreter |
| Solicitor for the Respondents: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 22 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1470 of 2006
| SZIWH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 May 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 April 2006 and handed down on 16 May 2006, affirming a decision of the delegate of the first respondent made on 16 February 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIWH”.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction, under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with the hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 6 July 2006. I have marked this as Exhibit “A" and the contents were read into evidence.
Background
The Tribunal decision of Ms A. Younes, reference N0653210, provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 21 November 2005. On 22 November 2005, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 16 February 2006, a delegate of the Minister refused to grant a protection visa and on 28 February 2006 the applicant applied for review of that decision.(CB 63)
The Applicant’s claims
The Tribunal decision sets out the applicant’s claims as follows:
a)He is from the State of Punjab, India and is of Sikh ethnicity and religion.
b)His family supported the Khalistan Movement which fought for a separate state for Sikhs. The Movement fought social injustice against the Sikh community due to their religion and culture. The Movement was subject to discrimination. After the Bharatiya Janata Party (BJP) came into power, Sikhs were harassed and branded as terrorists.
c)He had a “lot of problems” with the ruling BJP and the Indian Congress.
d)In the beginning of 1984, the then government attacked a major Sikh holy temple and many of his close relatives died. The applicant also experienced harassment throughout his life.
e)Eight years later, his brother was killed and his parents sent him to a hostel far from his home.
f)He was arrested and imprisoned for no reason. “They” came to his place and hit him with chains and steel rods. He was unconscious and was hospitalized for more than three months. His family then decided that he should leave India as soon as possible.
g)Some of his friends told him that BJP and Congress members planned to kill him. He went into hiding in other parts of India. He tried to return to Punjab but this made matters worse.
h)He fears that if he were to return to India, he would be persecuted and killed by his opponents.(CB 65-66)
Tribunal’s findings and reasons
A summary of the Tribunal’s reasons is contained in the first respondent’s submissions, prepare by Mr Cramer. I adopt paragraphs 4 and 5 of those submissions:
4.On 28 March 2006, the Tribunal wrote to the applicant pursuant to section 425 of the Act advising him it was unable to make a favourable decision solely on the information before it. The Tribunal invited the applicant to give oral evidence at a hearing on 5 May 2006. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 10 April 2006, the applicant responded to the hearing invitation by noting that he did not want to attend the hearing. He consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Accordingly, the Tribunal proceeded to make a decision based upon the evidence before it pursuant to section 426A of the Act.
5.Given the paucity of detail and information before the Tribunal, it was unable to be satisfied as to the essential aspects of the applicant’s claims. It was therefore not satisfied that the applicant has suffered or would suffer any of the claimed harm. The Tribunal was not satisfied on the evidence before it that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Application for review of the Tribunal’s decision
On 22 May 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date of 21 June 2006, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 29 August 2006. On 28 August 2006, the applicant filed an amended application which contained the following grounds:
That the Refugee Review tribunal did not appreciated the evidence and the claim of the applicant to the effect that the applicant fears persecution from India, the applicant is from the Sikh faith/ religion , and belongs to the state of Punjab, the applicant had to flee from his country due to the systemic harassments coupled with the threats to his life because of his opinion that he was and is a strong supporter of the Khalistan Movement fighting for a separate State for Sikhs . The applicant and his colleagues underwent lot of Discriminating circumstances , many of the applicants friends were killed by the hands of the Indian authorities during these times . Many hundred thousands innocent peoples from Sikh community were killed by the hands of the Hindus those times.
That the applicant was so harassed that the applicant had to leave his country and went to PRC , this was all due to the fear of life as the applicant became so distressed by the hands of the so called law enforcement agencies that he had to leave for PRC.
That the applicant has undergone lot of persecutions by the hands of the Indian authorities as they were out to kill all the Sikhs irrespective of the fact that whether or not they were the supporter of the Khalistan , they i.e. with out knowing there views, as a matter of fact this was mass killings of the Sikhs religion , the Indian Army as it is known to all over the world that they had the orders to kill all the Sikhs , it is also to be noted that many hundred thousand Sikhs omens and children’s were killed by the Indian Army.
That the Khalistan movement is still working, and the authorities of India , knows about that, it is not a secret that the movement is so strong that the workers are still working , the only difference is that , the activists of the Khalistan movement have joined the political parties , but underground the movement is going on very well. The applicant has faced lot of torture discrimination and other miseries which can not be explained . If the applicant had not gone to PRC, the applicant would have done to death.
That the applicant obtained visa for Australia from Peoples Republic of China, the applicant applied for protection visa. The applicant can not be given the protection in India, as and when the applicant is sent back to India, the applicant shall be done to death as such the protection of the applicants home country is out of question.
That the Refugee Review Tribunal did not appreciated the facts and the circumstances of the case, it is a known fact that the Indian authorities are deadly against the applicant, the RRT did not consider this important facts and the figures , the question of well founded well was not taken in to the account The RRT was bound to go in this question of law , the failure on the part of the RRT calls for an interference by this honorable Court.
That the applicants case was not dealt in accordance with the law , there is an legal ambiguity in the case while making the decision on the case of the applicant, the applicants case falls within all the key elements of the refugee laws. The applicant case falls within the social group as such the findings that the case of the applicants case does not falls within the five key elements of the refugee law as laid down in the International Refugee Convention held at Geneva.
1. The Refugee Review Tribunal did not gave any importance to the /claim evidence of the applicant . The applicant has proved the amount of the persecution under which the applicant has gone . These acts of the persecutions has caused the serious harm to the applicant , the applicant lost all his business, family and was open to a great fear of his life being taken away by the authorities in India. The applicant was open to serious economic harm and, was denied of his basic rights The applicant was refused to the basic services of life, the applicants capacity to earn basic rights was refused, the applicant was attributed the things to which the applicant never participated through out, the applicant has suffered all the above due to his opinion to fight for independent Sikh State and the allied activities which the applicant has stated in his claim. The applicant can not be given the protection in Indian. If the applicant is sent back to India, in that case the applicant shall be done to death by the hands of the authorities back in India. the tribunal did not make findings in relations to these claims , specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis. In these circumstances , the tribunal decision involved jurisdictional error.(copied without alteration or correction)
Submissions and reasons
The applicant was a self-represented litigant who appeared with the assistance of a Punjabi interpreter. At the commencement of the hearing, the applicant confirmed that he had filed an amended application and written submissions. When invited to make oral submissions, he said that he would rely upon his amended application and written submissions.
The first two paragraphs of the applicant’s submissions set out his refugee claims. In the third paragraph the applicant states:
That the RRT , the second respondent did not addressed the issues as submitted by the applicant in his written claims , rather the RRT discussed the other issues . The RRT did not considered the four key elements of being a refugee , nor the RRT considered the law for the time being in force , as it is laid down in the hand book of being a refugee issued by the UNHCR. The applicant is open to serious harm and systemic harassments by the hands of the authorities in India .The applicant was put to discriminatory conduct along with the physical harassments and was made to face the ill-treatment by the authorities. This has resulted in the grave miscarriage of the justice as laid down by the legalisations issued by the United Nations , the applicant was deprived off his liberty , the applicant was denied the right to access the basic needs of the life, the applicant was denied the right to survive , the applicant was denied all the rights to be citizens of his county. The applicant was deprived off his all the fundamental rights which are guaranteed by the International bodies to which the India is also a party.
The Refugee Review Tribunal gave the verdict that the case of the applicant does not falls within the refugee law , it is submitted that in the refugee law and in the general laws of the refugee any person who can not be given protection in any way can be given the protection the applicant and his family was under the constant harassments of the authorities concerned. The RRT did not took in to consideration the fact that the applicant was an active member of the movement of Khalistan , the applicant is a person of importance as far as the acts of violence against the applicant are concerned .The applicant was arrested many times by the police , the applicant was kept in the lock up as submitted above.(copied without alteration or correction)
Mr Cramer in his written submissions indicated that the grounds of the amended application were difficult to discern. It is submitted that to the extent that the applicant challenges the merits of the Tribunal’s decision, the amended application ought to be dismissed: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. Mr Cramer also submits that to the extent the amended application alleges that the Tribunal failed to consider or misunderstand the applicant’s claims, that claim should be dismissed. It is submitted that it is clear the Tribunal’s conclusions were open to it for the reasons it gave. There is nothing to indicate that any of the considerations it was required to take into account were overlooked. It properly considered the essential aspects of the applicant’s claims. Mr Cramer contends that it is for an applicant to make out his or her claims, not the Tribunal: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170. Not being affirmatively satisfied that the criteria for the visa in question was satisfied, the Tribunal was required to affirm the delegate’s decision: SJSB v Minister for Immigration [2004] FCAFC 225; Minister for Immigration v SZFDJ [2006] FCAFC 53 at [19]; Minister for Immigration v Lay Lat [2006] FCAFC 61 at [72] – [73]. Mr Cramer submits that no error, much less jurisdictional error, is disclosed in the Tribunal’s reasons.
I believe that the most important issue was that the Tribunal wrote to the applicant indicating that it was unable to make a favourable decision on the information supplied in his application, and so invited him to give oral evidence at a hearing on 5 May 2006.(CB 65) The invitation was sent to the applicant on 28 March 2006. The applicant returned the response to hearing invitation, confirming that he did not want to come to the hearing and that he conceded to the Tribunal making a decision on the review without taking any further action to enable him to appear.(CB 65) This was signed by the applicant on 6 April 2006 and returned to the Tribunal on 10 April 2006. Part 7, Division 4 of the Act contains provisions for the conduct of review by the Tribunal. Section 422B(1) of the Act states:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The Court Book indicates that the relevant sections of that Division have been complied with. It was the applicant’s election not to attend the scheduled hearing and he consented to the application being decided on the papers. Based on the material before it, the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal’s ‘Findings and Reasons’ contains the following statement:
The Tribunal is satisfied that the applicant has been given proper opportunity to support his application both at the primary level as well as at the review stage. He was invited to appear before the Tribunal to give evidence and present arguments. Furthermore, the applicant has not provided any corroborative evidence of his claims.
Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence, the Tribunal is not satisfied that his family supported the Khalistan Movement, or that he had a “lot of problems with the Ruling BJP and earlier the Indian Congress and in the course we had severe encounters”, or that in the beginning of 1984, the then government attacked their major Holy Temple and a lot of his close relatives died, or that he has experienced harassment throughout his life, or that “After 8 years”, his brother was killed and his parents sent him to a hostel far away from home, or that he was arrested by the police, appeared before a Magistrate, or that he was imprisoned for no reason, or that “One day”, they came to his place and hit him with chains and steel rods, or that he was unconscious and was hospitalized for more than three months, or that his family was very worried and decided that it would be better for him to leave India as soon as possible, or that he was told by some friends that the BJP and Congress members were planning to kill him, or that he went into hiding “for some time in other parts of India”, or that he tried to return to Punjab but this made matters worse, or that he fears that if he were to return to India, he would be persecuted and killed by the opponents, or that he fears for his life. In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has suffered or would suffer any of the claimed harm.(CB 66-67)
The reasoning of Allsop J in SZEZI v Minister for Immigration [2005] FCA 1195 and SZCIA v Minister for Immigration [2006] FCA 238 applies to the present case. The Tribunal did not make positive findings of facts about the applicant, but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed a protection obligation to him. This is clear from the Tribunal concluding:
On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.(CB 67)
Conclusion
The applicant is a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out. Mr Cramer, appearing for the first respondent, assisted the Court with submissions. The applicant was relying on documents which appear to have been prepared by a third party, but unfortunately he appeared to have little comprehension about their contents. Neither did he understand the operation of the Court. It is acknowledged that the applicant was desperately attempting to establish the validity of his protection visa application. The Tribunal decision was based on a lack of satisfaction on the corroborative evidence of his claims. It did not have the opportunity to explore the claims with the applicant at a hearing to test the evidence. I am satisfied the applicant has been given an opportunity to advance his claims and to file an amended application and supporting affidavit material. Despite this opportunity, nothing of significance was presented to show any error. I am satisfied that no reasonable cause of action has been shown and the matter should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 17 April 2007
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