SZJDZ v Minister for Immigration

[2006] FMCA 1564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDZ & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1564

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of India claiming fear of persecution by police – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 474

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

First Applicant: SZJDZ

Second Applicant: SZJEA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2166 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 Pepper

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed.

2. The Applicants are to pay the First Respondents costs in the sum of $4,000.00. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2166 of 2006

SZJDZ

First Applicant

SZJEA

Second 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. The decision was signed on the 21^st June and handed down on 11^th July 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants protections visas. 

Background

1. The Applicants are citizens of India who arrived in Australia on

   
   

   17^th December 2005. They applied for protection visas on the

   
   

   11^th January but a Delegate of the Minister refused to grant those visas on 24^th March 2006.  On 19^th April 2006, the Applicants applied to the Refugee Review Tribunal for a review of that decision.  They were represented by a solicitor, who is also a migration agent. No additional documentation was provided with the application. 

2. The Tribunal wrote to the Applicants on 22^nd May 2006 inviting them to attend the hearing on the 20^th June.  The First Applicant appeared and gave evidence with the aid of an interpreter. The Second Applicant, who is the First Applicant's wife, did not attend.  She chose to remain at home and the Tribunal referred, at page 186 of the Court Book, to the fact that the Tribunal did not draw any negative inference from her absence. 

3. The Applicant’s claim of fear of persecution in India for what the Tribunal believed was for reasons of political opinion, although speculated that the Applicants may regard their case as one involving membership of a particular social group. The Tribunal expressed skepticism as to whether either of those grounds, or any other Convention related ground were appropriate. 

4. The Applicant husband claimed that he was a businessman in Mumbai, who obtained a government ration card to which he was not entitled and was charged by the police for using this ration card.  He explained to the Tribunal why he thought it was not illegal for him as a businessman to be using a ration card in the circumstances, although the Tribunal made it clear at pages 188 and 189 that the Tribunal did not believe his explanation. The Applicant was arrested and charged.  He accused another person of mass producing fake ration cards. 

   
   

   He was bailed.  He claims that he was released on reporting conditions, as far as his bail was concerned, and that the case against him remained current. 

5. The Applicant provided the documents relating to the case.

   
   

   The Tribunal noted that although the Applicant husband claimed to have been restricted from leaving Mumbai, he was issued with a passport by authorities in Mumbai on 29^th August 2005 and departed India via Mumbai airport. I note that the Applicant had provided a copy of his passport to the Tribunal for the purpose of the hearing of his application. The Applicant told the Tribunal that the other person involved was a member of the Congress Party and alleged that that person had attempted to avoid being prosecuted by placing the blame on the Applicant.  The Applicant claimed that the police harassed him.

The Tribunal’s Findings and Reasons

1. The Tribunal set out its findings and reasons and they appear on pages 190 and 191 of the Court Book. The Tribunal accepted that the Applicants are Indian nationals and accepted that the First Applicant, the husband, was implicated in a case involving forged ration cards.  The Tribunal did not find anything Convention related in the evidence as to how the Applicant became or remained implicated in that case.  The Tribunal dismissed the suggestion that the case had anything to do with real or imputed or implied political opinion and took the view that the evidence showed that the Applicant's difficulties were a purely criminal matter and were subject to laws of general application in India. 

2. The Tribunal was prepared to accept that some local police officers continued to regard the Applicant husband as a criminal and harassed him, but was not satisfied that the Applicants were harassed or importuned in such a way or with such frequency or for so long that it could reasonably regard that harassment as persecution, let alone as treatment indicative of a real chance of persecution in the reasonably foreseeable future.  The Tribunal noted the Applicant husband's claims about his family, but said that they were plausible but not Convention related. 

3. The Tribunal was not satisfied that the Applicants have a well founded fear of Convention related persecution in India, was not satisfied that the Applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The Tribunal affirmed the Delegate's decision not to grant Protection (Class XA) visas. 

The Application for Judicial Review

1. The Applicants filed an application, which I note was handwritten, contrary to the rules of this Court, on 8^th August 2006.  The Applicants seek writs of certiorari, prohibition and mandamus.  The Applicants sets out three grounds for relief, which I should read onto the record:

   a)That the Tribunal exceeded its jurisdiction by finding that:

   "The evidence of the Applicants being allowed to leave Mumbai leads the Tribunal to the view that the police in that city did not place any sustained or systematic limitations on the applicants' freedom or their privacy."

   b)That the Tribunal erred in law when it concluded:

   "The Tribunal is not satisfied that the applicants have well founded fear of Convention related persecution in India and that they are not refugees."

   c)The Tribunal failed to consider the Applicant's claims when nevertheless accepted some local police officers continued for a time to regard the Applicant husband as a criminal and that they harassed him and pestered the applicant wife.

2. The First Applicant has attended Court today and indicated that he had had some assistance in preparing his application and was not able to comment on any of the grounds in it.  He said that he cannot leave Australia because he had some problems in India and said that if he were to go back to India it would create a lot of problems for him.  He escaped from them, meaning Indian police and others, because there were some allegations on him. 

3. It is difficult to see that the Applicant has made out any grounds of relief. I am not of the view that the grounds as set out come close to disclosing a reasonable cause of action. There is no particularisation as to how the Tribunal exceeded its jurisdiction in reaching a finding of fact that the Applicants were able to leave Mumbai and obtain a passport, which points to the view that the police in that city did not place any sustained or systematic limits on the Applicants' freedoms or on their privacy. That is purely a finding of fact and I note that the First Applicant's passport was provided to the Tribunal as part of his application to the Tribunal. It does not seem to me that any difficulty under s.424A of the Migration Act arises because a passport was clearly provided for the purpose of the review and therefore comes under the exception of sub-s.424A(3)(b). 

4. It is submitted by counsel for the Respondent, Ms Pepper, and I believe correctly, that the Tribunal weighed up the evidence of the Applicants and made findings of fact that were open to it on the material before the Tribunal.  The Tribunal was entitled to do so in the circumstances, and I am referred to the decisions of Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558 to 559 and also WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [30]. It is submitted that the ground of review must fail, and indeed it must. I am satisfied that no jurisdictional error has been shown in respect of ground one and there is no evidence as to how the Tribunal exceeded its jurisdiction in reaching a finding of fact based on the evidence before it.

5. The second ground relates to the Tribunal's lack of satisfaction that the Applicants had a well founded fear of Convention related persecution in India. There is no particularisation to show how the Tribunal's lack of satisfaction amounts to a jurisdictional error.  Counsel for the First Respondent submit, and again I believe correctly, that the Applicants are seeking to take issue with the Tribunal's factual findings, which is, in fact, no more than engaging in merits review. It is submitted correctly that there is no evidence that the Tribunal did anything other than exercise its power in a bona fide way. I am referred to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272.

6. In my view it was open to the Tribunal not to be satisfied of a well founded fear of Convention related persecution as the facts as alleged by the Applicants seem to bear no relation to any of the grounds under the Convention but relate to the First Applicant having been involved in criminal proceedings under the criminal law of India, where his remedies would lie within the criminal justice system of that country. 

7. The third ground has been described by counsel for the First Respondent as the harassment ground.  She submitted, again correctly, that not all forms of harassment and discriminatory treatment amount to persecution, (See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225).  The Tribunal found as a matter of fact that the harassment and discrimination that the Applicants claim to have been subjected to was not sufficient to amount to persecution as that concept is understood under the Convention. 

8. In my view it was open to the Tribunal to make that finding, and indeed the Tribunal had already found that the ground that the Applicants claimed was not Convention related.  In any event, even if there had been a finding of harassment, unless it had some Convention connection, the Applicant still would not meet the criterion under

   
   

   sub-s.36(2). It is submitted on behalf of the First Respondent Minister, and again I believe correctly, that this third ground must fail on the basis that there is noting to impugn the Tribunal's decision.

9. I have read through the Tribunal decision, mindful of the fact that the Applicant is not currently legally represented, although he has had some legal advice from the solicitor who was also his migration agent.  I am unable to discern any jurisdictional error not raised by the Applicant either in his submissions or in his application for review. 

   
   

   It follows that as there is no jurisdictional error the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act.  Consequently the decision is not subject to certiorari, prohibition or mandamus as the applicant claims.  The application will be dismissed.

10. There is an application for costs on behalf of the First Respondent Minister.  The Applicants have been wholly unsuccessful in their claim and indeed their claim is entirely without merit. There is no reason why I should not make an order for costs in favour of the First Respondent.  The amount claimed is $4,000.00 inclusive of counsel's fees. The First Applicant says he does not have the income to meet that and I accept that and I will allow a short period of time to pay.  In my view, however, the amount claimed is certainly appropriate and I see no reason why I should not make that order.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  20 October 2006