SZJLP & Anor v Minister for Immigration

[2007] FMCA 1870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1870

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZJLP (applicant husband) and “SZJLQ” (applicant wife)”.

Migration Act 1958 (Cth), ss.91R, 91X
Judiciary Act 1993 (Cth), s.39B

Chan Yee Kin Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412
Das v Minister for Immigration & Multicultural & Indigneous Affairs (2004) 208 ALR 229
Minister for Immigration & Multicultural & Indigneous Affairs v Kord (2002) 125 FCR 68
Minister for Immigration & Multicultural & Indigneous Affairs v SZANS [2005] FCAFC 41
NAAH v Minister for Immigration & Multicultural & Indigneous Affairs [2002] FCAFC 354
NAHR v Minister for Immigration, Multicultural & Indigneous Affairs [2004] FCAFC 10 at [10]
NARE v Minsiter for Immigration & Multicultural & Indigneous Affairs [2004] FCA 554
Prahstono v Minister for Immigration & Multicultural & Indigneous Affairs (1997) 77 FCR 206
SZDFO v Minister for Immigration & Multicultural & Indigneous Affairs [2004] FCA 1192

First Applicant: SZJLP

Second Applicant: SZJLQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2811 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 11 September 2007

Delivered at: Sydney

Delivered on: 7 November 2007

REPRESENTATION

Advocate for the Applicants: The applicants appeared in person with the assistance of a Gujarati interpreter

Solicitors for the Respondents: Ms Z McDonald of DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 29 September 2006 is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2811 of 2006

SZJLP

First Applicant

And

SZJLQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant husband is a 56 year old man from Gujurat, India and is the only one to make specific claims under the Refugees Convention. The applicant wife makes no separate claims and relies on her membership of the applicant husband’s family. The applicant husband is unemployed and has completed only three years of education. He ran a business which he claims he was forced to close. He says he is poor, has no employment and has no medication (CB 99).

2. He states he is a member of the Bharatiya Janata Party (BJP) and that there were riots between BJP and the opposing Congress Party. In 1992 after the Babri Masjid (mosque) was destroyed, Hindus were killed by Muslims and the applicants’ family were attacked. They survived because police protected them and order was restored after some time. More riots and killing took place in 2000 after an incident in Godharakand. The applicant husband was unable to return to work because he worked in a Muslim area. He attempted farming but continued to be threatened and so he returned to Ahmedabad (CB 99-100).

3. A delegate of the Minister refused to grant the applicants a protection visa. The applicants sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”) who upheld the delegate’s decision. The applicants seek judicial review of the Tribunal decision.

4. A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.

5. At the first Court date, the applicant husband indicated that he wished to participate in the scheme giving unrepresented applicants in refugee matters independent legal advice. He was subsequently allocated a panel adviser.

6. The applicants were granted leave to file the amended application giving complete particulars of each ground of review relied upon, but failed to comply with this order. The original application filed reiterates findings made by the Tribunal and alleges that errors in the findings. However, no particulars are provided to explain these alleged errors.

Consideration

1. The grounds of the application are:

   1. The Tribunal misdirected by making the following conclusion – “Whilst the Tribunal found the applicant to be generally credible and truthful it has formed the view that he has exaggerated the threats currently posed to him by the Muslim group in Daraipur.

   2. That the Tribunal erred in law when it found  - “Neither his religion as a Hindu nor his political opinion as a member of the BJP was a central and significant reason for harm suffered by the applicant on that occasion.”

   3. The Tribunal exceeded its jurisdiction when it said – “It accepts that he received verbal threats and some harassment since that time but the harm suffered is not serious harm which amounts to persecution.”

2. The applicant husband confirmed that he had not prepared any written submissions in support of his application. He stated that he needed more time to prepare his case. I indicated that approximately 12 months had passed from the filing of the application to the final hearing. The applicants have had adequate time and opportunity to prepare their case. The applicants would not be granted an adjournment unless there were compelling reasons before the Court. The applicant husband also declined to make any oral submissions.

3. Ms McDonald, for the respondents, submits that the grounds of the original application purport to seek a merits review of the Tribunal’s decision. It is submitted that these findings of facts cannot be disturbed by judicial review as it is not part of this Court’s function in dealing with an application for relief under s.39B of the Judiciary Act 1993 (Cth): NAHR v Minister for Immigration, Multicultural & Indigneous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 at [420] per Mason CJ.

4. Ms McDonald submits that the Tribunal considered the applicant husband’s position as a member of the BJP and as a Hindu, but found that the essential and significant reason for the injuries he sustained in the 2003 attack was his role in defending his employer. The use of the expression “essential and significant reasons” in the Tribunal’s reasons shows that it correctly applied the test set out in s.91R(1)(a) of the Migration Act 1958 (Cth) and did not err in law as suggested by the applicants.

5. Ms McDonald submits that the claim that the Tribunal exceeded its jurisdiction in finding that the applicant husband had no suffered serious harm is a further attempt by the applicants to seek merits review of the decision. It is submitted that the Tribunal correctly considered whether the applicant husband had suffered serious harm pursuant to s.91R(2) of the Migration Act. This is a matter of fact to be determined by the Tribunal: Prahstono v Minister for Immigration & Multicultural & Indigneous Affairs (1997) 77 FCR 206 at [268] and [271]; Minister for Immigration & Multicultural & Indigneous Affairs v Kord (2002) 125 FCR 68 at [3], [53]-[56]; Das v Minister for Immigration & Multicultural & Indigneous Affairs (2004) 208 ALR 229 at [23]-[24]; Minister for Immigration & Multicultural & Indigneous Affairs v SZANS [2005] FCAFC 41 at [50]-[53].

6. The application before this Court, although not expressly stated, appears to be a request that the Court conduct a merits review of the Tribunal decision. This in effect is a complete rehearsal of all of the issues relevant to the application as well as any new evidence. The applicants have not attempted to submit any new evidence but the grounds seek a reassessment of the merits of the application. Merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. What the applicants seek is not available in this Court: SZDFO v Minister for Immigration & Multicultural & Indigneous Affairs [2004] FCA 1192; NARE v Minsiter for Immigration & Multicultural & Indigneous Affairs [2004] FCA 554; NAAH v Minister for Immigration& Multicultural & Indigneous Affairs [2002] FCAFC 354.

Conclusion

1. The applicant husband appeared at the hearing as a self-represented litigant with the assistance of a Gujarati interpreter. He had the assistance of a migration agent since he filed his original protection visa application in February 2006. That agent assists many applicants who appear in this Court and is familiar with the jurisdiction. The applicants received assistance at all stages of their protection visa application and the review before the Tribunal. It is not clear whether the applicants were assisted in the preparation of Court documents. The applicant husband clearly has little understanding of the issues before the Court and seemed to misunderstand that this hearing was a re-hearing of the issues relevant to the visa application. He had little knowledge or understanding of this Court’s function. It is not apparent from the contents of the Court Book or on the face of the Tribunal decision that any jurisdictional error has been made. Consequently the application should be dismissed.

2. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  7 November 2007