SZJDU &Anor v Minister for Immigration
[2007] FMCA 1776
•8 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1776 |
| MIGRATION – Review of RRT decision – where applicants did not attend Tribunal hearing – where Tribunal assessed claims in accordance with s.426A Migration Act 1958 – where applicants’ claims economic claims – whether Tribunal failed to consider whether applicants belonged to particular social group – where claims unrelated to the Refugees Convention. |
| Migration Act 1958, ss. 91R, 426A. |
| Applicant A & Anor v Minister for Immigration (1997) 190 CLR 225 UNHCR Handbook on Procedure and Criteria for Determining Refugee Status |
| First Applicant: | SZJDU |
| Second Applicant: | SZJDV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2159 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 October 2007 |
| Date of last submission: | 8 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2007 |
REPRESENTATION
| Applicants in person |
| Counsel for the Respondents: | Mr R. Foreman |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $4,500.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
The name of the Second Respondent be amended to “Refugee Review Tribunal”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2159 of 2006
| SZJDU |
First Applicant
SZJDV
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The two applicants in this matter are husband and wife. They are citizens of India. They arrived in Australia on 17 November 2005, and applied to the Department of Immigration & Multicultural Affairs for protection (class XA) visas on 30 December 2005. They made individual claims on the forms which are contained in the Court Book. On 6 March 2006 a delegate of the Minister refused to grant a protection visa to each of the applicants. On 30 March 2006 they applied to the Refugee Review Tribunal for review of the delegate’s decision.
On 12 April 2006 the Tribunal wrote to the applicants at the address of their migration agent, who was defined as their authorised representative in section C of the application to the Tribunal [CB 94]. Through the agent the applicants were invited to a hearing at 10.30 am on 20 June 2006. The agent replied on their behalf, advising the Tribunal that that particular time on that day was inconvenient to him, and he asked for a change in time. His request was acceded to, and a further letter of invitation was sent on 25 May 2006 [CB 102]. As it happened, neither applicant appeared before the Tribunal. The Tribunal noted at [CB 117] that it made two attempts to contact the applicants on the day of the hearing, it checked to make sure that “the applicant is still in Australia”. It also checked to ensure that correspondence was sent to the applicants’ correct address. When these matters were confirmed satisfactorily, the Tribunal decided to proceed pursuant to s.426A of the Migration Act 1958 (“the Act”) and to determine the matter on the papers. On 26 June 2006 the Tribunal determined to affirm the decision not to grant protection visas, and handed that decision down on 11 July 2006.
The Tribunal has, to my mind, accurately summed up the claims that were made on behalf of both applicants in their protection visa applications, at [CB 117]-[118]. These grounds appear to be entirely economic ones in both cases. Interestingly, the male applicant held down a job for some fourteen years in India and his financial difficulties appear to have arisen following a misconceived venture into the sale of tea. No doubt, had the applicant attended the hearing, the Tribunal would have questioned him in relation to those matters.
In its findings and reasons, the Tribunal stated at [CB 118]:
The applicants [named] have made claims to the effect that they left India to escape from poverty, unemployment, a lack of food, clothing, health care and clean drinking water. They do not want their children to suffer and the applicant husband has stated that he spent 900,000 IR to come to Australia, an amount he will be unable to repay and the debt of which would be passed on to his children.
Neither the applicant nor the applicant wife have claimed to fear harm for reason of a Convention related reason, namely: because of their race, religion, nationality, membership of a particular social group or political opinion.
The applicants have made it clear from their statements that they left India for financial reasons and do not wish to return to India for financial reasons.
The Tribunal then quoted from the UNHCR Handbook on Procedure and Criteria for Determining Refugee Status, done at Geneva in 1988, at paragraph [62], which rules out an economic migrant as a refugee. The Tribunal found that the applicants’ claims were unrelated to the Refugees Convention, and hence affirmed the decision that they were not persons to whom Australia owed protection obligations.
The reasons given by the Tribunal were concise and by all accounts correct. It is clear from decisions such as Applicant A & Anor v Minister for Immigration (1997) 190 CLR 225 at [283] per Gummow J, Minister v Hagi Ibrahim (2000) 204 CLR 1 at [49] per Gummow J (with whom the Chief Justice agreed), and Buksh v Minister [2001] FCA 1504, that economic migrants are not persons who fall within the purview of the convention. In Buksh, Katz J after quoting from the two High Court decisions previously referred to said at [42]:
“As I have already made plain at [21]-[23] above, the mere fact that a person would be the victim of bad economic conditions in that person’s country of nationality does not of itself mean that that person would be persecuted in that country within the Convention notion of persecution. A question would arise whether that person would suffer, not merely from economic conditions, but from economic discrimination, either at the hands of the government of the person’s country of nationality or at the hands of others, in circumstances in which that government was either unwilling or unable to prevent such economic discrimination by those others. (There would, of course, also be further questions whether such persecution, assuming it occurred, would be for one of the Convention reasons.)”
As Mr Foreman pointed out in his helpful submissions, these matters are also taken up in the legislation at s.91R(3) of the Act.
It would seem that, based upon the papers provided by the applicant, the Tribunal was entirely correct in the manner in which it dealt with his application. I am supported in this view by none other than the male applicant himself who presented his case to me in the following way:
“I do not see any legal error in the decision. It was my mistake that I could not attend the hearing and could not explain myself.”
The male applicant has not relied on his own expertise in relation to this case. He seems to have obtained advice from another who, on his behalf, has filed both an amended application and some submissions. The first ground of the amended application was that the Tribunal failed to consider that the applicants belonged to a social group in India “who suffered fear in the hands of the rich and the powerful in the country all the time”. The difficulty I have with this ground is that the fear at the hands of the rich and powerful was not expressed as a fear by the applicant in the written documentation. This is a fear based upon a form of persecution by a particular group of people. It is not the same as a wish to escape from the extreme poverty that the applicant claims he had in India. But this claim was not made to the Tribunal and it is hardly fair to ask the Tribunal to come to a decision about a claim of which it has no notice.
As was said by the Full Bench per Allsop, Jacobson and Graham JJ in Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]:
“Proceedings before the Tribunal are inquisitorial rather than adversarial. The Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in a position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee ... had been made out.”
Perhaps the most authoritative statement on this matter was that made by Kirby J in Dranichnikov v Minister (2003) 197 ALR 389 at [78], where his Honour said that an applicant:
“… does not have to pick the correct Convention ‘label’ to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.” [footnotes omitted]
The next matter raised by the applicants in their amended application states that the Tribunal failed to reach the required state of satisfaction because it failed to consider that the applicants belonged to a particular social group consisting of the “poor and downtrodden social class they belonged to”. I have some difficulty in understanding the difference between that ground and ground one. If anything, it is weaker because it makes no reference whatsoever to any persecution of the applicants, which, at least, the purported claim that I have previously dealt with did. To the extent that the ground suggests that:
“the downtrodden poor masses in India … had a significant characteristic as a distinct social group, subject to day to day harassment, fear and subjugation because of their social sector”,
I am afraid I must disagree. I accept the submission made by Mr Foreman that it is the very condition that defines this group that is the disadvantage they suffer from. They are poor and they suffer from being poor. This is not a definition of a particular social group.
In the applicants’ submissions there is a section entitled “legal arguments” commencing at para.14. The first legal argument is that the Tribunal failed to carry out its jurisdictional commitment under s.91R because it misinterpreted the applicants’ claims and obviously bypassed the standard test. I am unable to accept that the Tribunal in any way misunderstood or misinterpreted the applicants’ claims. Had a claim in relation to membership of a particular social group been made it would undoubtedly have been dealt with.
The second complaint at para.15 relates to the manner in which the Tribunal carried out its review. There was some suggestion that it was not carried out in a constructive and articulate manner. The Tribunal has power under s.426A to conduct a review in the manner in which it did. I am quite satisfied that the Tribunal made the appropriate enquiries about the applicants’ non attendance, and today the male applicant has offered no reason as to why he or his wife did not appear. The grounds and reasons seem to me to be adequately articulate. I am unable to make a finding in favour of the applicants on this ground.
Finally, there is a submission that the Tribunal erred because it made its finding on the basis that the applicants had told it that they left India for financial reasons and did not wish to return to India for financial reasons. At para.17 there is a final submission that the applicants left India due to humanitarian reasons only and not for financial reasons. It is too late to make this point at a hearing to consider the provision of judicial review of a Tribunal decision. If the applicants had some humanitarian reasons for leaving India they should have made those clear both to the delegate and to the Tribunal.
In the circumstances there are no grounds upon which I can find that the Tribunal erred in the manner in which it came to its decision. There are no jurisdictional errors that I can see. I dismiss the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date: 22 October 2007
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