SZJLH v Minister for Immigration
[2008] FMCA 175
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJLH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 175 |
| MIGRATION – Review of decision of RRT – where application originally dismissed for non attendance – whether Tribunal erred in construing the term religious belief – whether Tribunal assessed the second applicant’s claims – whether applicants were able to access state protection – whether Tribunal issued meaningful invitation under s.525 – whether Tribunal correctly notified applicants. |
| Migration Act 1958, ss.91R, 525 Federal Magistrates Court Rules 2001 |
| VEAN of 2002 v Ministerfor Immigration (2003) FCAFC 311 SZKPQ v Minister for Immigration [2007] FMCA 1658 |
| First Applicant: | SZJLH |
| Second Applicant: | SZJLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2790 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 February 2008 |
| Date of last submission: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| For the Applicants: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the First Respondent's costs assessed in the sum of $4,500.00 to take into account both hearings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2790 of 2006
| SZJLH |
First Applicant
| SZJLI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants in this matter are husband and wife. They are Indian. They arrived in Australia on 31 January 2006 and applied to the Department of Immigration & Multicultural Affairs for protection (Class XA) visas on 10 March 2006. On 12 May 2006 a delegate of the Minister refused to grant protection visas and the applicants applied for review of that decision on 12 May 2006.
In the application for a protection visa the male applicant completed Form C and his wife completed Form D which is an application for a member of the family unit who does not have their own claim to be a refugee. The applicants appointed a Migration Agent as their authorised recipient.
On 20 June 2006 the Tribunal wrote to the authorised recipient advising him that the Tribunal had considered the material before it in relation to the applicant's application but was unable to make a decision in his favour on that information alone and appointed a hearing date. The letter continued that the wife should be informed about the letter and that any reply would be regarded as a joint response unless the Tribunal was advised otherwise [CB 58].
On 22 June 2006 the agent wrote to the Tribunal advising that he was unable to attend on that date and put forward certain other dates upon which he would be able to attend. The Tribunal agreed to reschedule the hearing to 10 August 2006 and on 22 June 2006 wrote a further letter to the agent in the same form as the original letter including the requirement that the wife should be informed [CB 62-63]. The applicant himself attended the hearing but the wife did not attend, nor did the authorised representative. On 11 August 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 31 August 2006.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his being a small business man who provided decorations for Hindu weddings in his home village in which he had lived his whole life. This village was in the State of Gujarat. The applicant is a Hindu. The applicant complained that he was harassed and beaten by Muslims. He claimed that they had threatened to kill his children, that there had been several attacks in his area in which Hindus had been killed. Because of this fear he and his wife had travelled to Australia leaving behind their two young children with his parents.
It appears from the evidence of the applicant that the violence that he claims was directed particularly at him came from a business rival, a local Muslim wedding decorator. The applicant said that he had lodged complaints with the police, and that he was subjected to threats unless he withdrew those complaints. The applicant stated that the police had informed him that the first complaint he had made was not received and they had done nothing about the second complaint.
The evidence that the applicant had given was considered by the Tribunal and he was questioned upon it. The Tribunal pointed out to the applicant that independent country information tended to indicate that in Gujarat any violence between Muslims and Hindus tended to be instigated by Hindus and that the persons who suffered from such violence tended to be Muslims.
“As to the applicant's oral account of his reasons for leaving India, I accept that he was the owner of a business which specialised in wedding decorations, and that between 2004 and 2006 a competitor tried to drive him out of business. Although he claimed this businessman was a Muslim, the applicant unequivocally stated that the reason for the harassment was business-related. It was not for the reason of his religion. That is also borne out by his evidence that, although almost half the village's population was Muslim, he had little contact with Muslims in it until 2004, his contact increasing then only because this Muslim businessman saw his business as a commercial threat. … He submitted no documentary evidence that Hindus were the victims of any ongoing attacks by Muslims in his locality. The applicant also gave clear evidence that with the exception of one other family the town's other Hindus were not being seriously harassed or harmed by local Muslims, a matter which indicates that the essential and significant reason for whatever problems he faced was not his religion. Further, much of his evidence as to when attacks on him and his family occurred was vague and internally contradictory and for that reason I have some doubts that he was harmed at all in 2005. As to his claim that there was an attempt to abduct his children in late 2005, I have the greatest difficulty believing this, given that the applicants chose to leave their children in their family home two months later when the applicants left India, where they would presumably remain vulnerable to a further abduction attempt and, further, that the applicants made no attempts themselves to move to another village or town rather than leave the country - an option which would have enabled them to remain with their children."
The Tribunal concluded that the applicant had exaggerated the level of any harassment or harm that he had faced in 2005 and it was not satisfied that any persecution that he might have received was for any of the reasons set out in the Convention.
This matter was originally set down for hearing on 28 November 2007. At that time the applicant had filed the vaguest of applications and had not taken advantage of the offer made to him at the directions hearing to file an amended application. On the date fixed for hearing the applicant did not attend and I dismissed the application under Rule 13.03A(1)(c) of the Federal Magistrates Court Rules 2001.
The applicant appeared this morning on his own application for me to vacate that order. He told me that he was now living in Queensland and that on the date in November he was unable to pay for an airfare or a train fare to come to Sydney. He did not provide any other explanation and did not explain why he had not phoned the court and told them of his problems.
The applicant then asked me to consider an amended application which he wished to file. This amended application was far more articulate than the one previously filed and appeared to indicate some grounds upon which an investigation of jurisdictional error might be made. The applicant and Mr Snell, who appears on behalf of the respondent, agreed that I should hear the case in substance today and after a short adjournment for the benefit of Mr Snell and the applicant that has been done.
There are four grounds of application. The first is that the Tribunal misunderstood or misconstrued the term “religious belief” as it appears in the Refugee Convention. The particulars given were that the Tribunal failed to appreciate that the applicant suffered harm at the hands of Muslim opponents only because of his religion. It also failed to understand the jealousy by Muslim competitors which instigated harm to the applicant was for reasons of religious belief.
It will be clear from the extract of the Tribunal's decision that I have set out above that the Tribunal gave very serious consideration to the grounds upon which his competitor acted against the applicant. The only evidence of what the applicant said to the Tribunal is the Tribunal's own record of decision and that makes it clear that the harassment was not for reason of the applicant's religion. If the applicant disputes this then he should have produced evidence in the form of a transcript. This has not been done. I am unable to find that there is any merit in the first ground of application.
The second ground is that the Tribunal failed to assess whether the secondary applicant, the applicant's wife, was a refugee for her "membership of a particular social group" as defined in the Refugees' Convention. The particulars of this claim are that the Tribunal, whilst not accepting all claims made by the applicant, did accept several claims of persecution that the applicant and his family member suffered. It argues that the spouse of the applicant fell within the meaning of a particular social group due to her membership of the family and the Tribunal did not assess whether she faced a real chance of persecution in India as a result of her membership of the family.
The first point that must be made is that the wife did not make any claim of this nature. She filled in Form D. That indicates that she had no claim of her own. The Tribunal was not obliged to consider a claim not made. In any event, the Tribunal came to the conclusion that the level of harassment or harm faced by the applicant and his family had been considerably exaggerated and thus would not satisfy the provisions of s.91R of the Migration Act 1958 (the “Act”). I am unable to accede to the applicant's request for review on this ground.
There is added as particular B to ground 2 what appears to me to be an independent ground that it was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection. Effective state protection was not really an issue in the hearing although the applicant did complain that he had not been treated well by the police. In this regard the Tribunal said:
“As to his claim to have lodged two complaints with the police, it is not implausible that he did so as a result of harassment by his business competitor. He claimed that the police favoured Muslims and that was why his first complaint was not investigated. However that claim is so inconsistent with the evidence from the US State Department and the documentary evidence he himself submitted that I do not accept it to be the case.”
There clearly was evidence upon which the Tribunal could come to the view that the applicant could avail himself of effective protection.
The third ground is that the Tribunal failed to issue a meaningful invitation to the second applicant to attend a hearing pursuant to s.525 of the Act, and the particulars state that the Tribunal in its letter of invitation to attend a hearing did not invite the applicant's wife to appear before it.
As I have indicated both the invitation letters state:
“We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.”
The person listed below in each case is the wife of the applicant. I cannot see that there is any foundation in this ground.
The final ground is that the Tribunal incorrectly notified the applicant in all of its correspondences to the applicant. The particulars indicate that the Tribunal wrote to the advisor of the applicant, addressed it to the advisor instead of the applicant and makes reference to the case of VEAN of 2002 v Ministerfor Immigration (2003) FCAFC 311 and SZKPQ v Minister for Immigration [2007] FMCA 1658.
In this case the letters were written to the advisor. They were not written to the applicant care of the advisor. The letters commence with the greeting: "Dear Mr Applicant". It seems to me that the requirements of the section have been complied with. But even if there was some technical error which could constitute a jurisdictional error I would be prepared to exercise my jurisdiction to refuse to send the matter back to the Tribunal on the grounds that the jurisdictional error had no effect whatsoever upon the applicant who was clearly told about the hearing and appeared. In the circumstances I must dismiss this application, which I do. I vacated the previous order in relation to costs that I made when the applicant failed to attend. I propose now to order that the applicant pay the First Respondent's costs assessed in the sum of $4,500.00 to take into account both hearings.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: