SZJZG & Anor v Minister for Immigration

[2007] FMCA 2018

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2018

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 “SZJZG” (applicant husband) & “SZJZH” (applicant wife).

Migration Act 1958 (Cth), ss.91X, 422B, 424A

Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61
NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927
NAOA v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Simjanoski v La Trobe University [2004] VSC 180
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZDPY vMinister for Immigration and Multicultural Affairs [2006] FCA 627
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851

First Applicant: SZJZG

Second Applicant: SZJZH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 27 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 17 September 2007

Delivered at: Sydney

Delivered on: 4 December 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Gujarati interpreter

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application filed on 4 January 2007 is dismissed.

2. 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 27 of 2007

SZJZG

First Applicant

And

SZJZH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicants are husband (SZJZG) and wife (SZJZH) from Jovindpura, Gujarat, India and are of the Hindu faith. The couple’s children remain in India with their grandparents. The applicants claim to be impoverished, landless peasants who are poor and indebted to their landlord.

2. The applicant husband claims to belong to a lower-middle class family and had worked on farms mostly owed by a frugal landlord. He claims that people like himself have always been treated cruelly and harshly like slaves by both the landlord and his associate. He claims that women and children were discouraged from seeking an education. The applicants were forced to have a political opinion aligned with the landlord and they had to vote for the landlord’s candidate in elections. This caused the applicant to oppose the landlord and other powerful people in their area. The applicant husband was considered the leader of a group and was attacked resulting in his child being seriously hurt. He claims that there were plans to kill him to set an example for the people of the region. He claims that the police were on the side of the landlord and offered no support. The applicant husband was forced into hiding to save his family’s lives as his persecutors were influential and powerful.

3. The applicants arrived in Australia on 26 April 2006 and applied for a Protection (Class XA) visa on 5 June 2006. A delegate of the first respondent refused to grant a visa on 7 August 2006 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicants applied to this Court for judicial review of the Tribunal decision, reference 060730080, which was issued on 12 December 2006.

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. The original application filed on 4 January 2007 contains three grounds of review:

   a)RRT decision was infected by jurisdictional error and breached procedural fairness (“ground one”);

   b)The decision now falls within the application of SAAP, which gives new definition of s424A (“ground two”);

   c)RRT breached s424A of the Migration Act, failed to disclose adverse information (“ground three”)

Consideration

Ground one

1. At first Court date directions, the applicants indicated that they wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The Court file indicates that despite attempts by the panel adviser to contact them to arrange a conference, the applicants failed to respond. The applicants were also granted leave to file an amended application giving complete particulars of each ground of review relied upon. Nothing was filed nor is there any affidavit evidence or written submission in support of the application.

2. When the applicant husband was invited to make oral submissions, he said that there was insufficient time for him to obtain documentation from India to support his claims. I indicated to the applicant husband that his original visa application was lodged on 5 June 2006 and sufficient time had passed since then for him to obtain any documents he required. I also pointed out that this was a judicial review of the Tribunal decision, which was a review of the material before the Tribunal at the time of its decision. It was not the function of this Court to accept and consider new evidence in support of the applicants’ claim.

Grounds of review

1. The grounds in the application contain no particulars nor is there any evidence or submission made in their support.

2. Mr Mitchell, for the first respondent, submits that the Tribunal’s reasons do not disclose any breach of Division 4 of Part 7 of the Migration Act 1958 (Cth) (“the Act”): s.422B of the Act; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61; SZJIG v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.

3. In support, Mr Mitchell submits that the applicants were invited to appear at the Tribunal hearing and present their claims. Mr Mitchell submits that nothing that has been placed before this Court to indicate that the invitation issued to the applicants was anything other than a real and meaningful one. Nor is there any evidence to suggest that the applicants were in any way denied of an opportunity to present their claims at that hearing.

4. Mr Mitchell then referred to NAOA v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]-[21] per Beaumont, Merkel and Hely JJ:

   20.    It is submitted for the appellant that, since Driver FM was prepared to draw an inference that the Tribunal did not put its concerns about the appellant’s documents and apply NARV in the light of that inference, his Honour should also have drawn an inference that the Tribunal did not raise the country information concerning document fraud with the appellant and apply NARV accordingly. On this basis alone, counsel for the appellant submits, the reasoning of Ryan and Finkelstein JJ in NARV is indistinguishable, and accordingly, the appeal should be allowed.

   21.    We cannot accept this submission, for several reasons.

   For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.

5. The matter before this Court is absent a transcript or other evidence which would suggest that the applicants were denied the opportunity to present their claims. The Tribunal issued the hearing invitation on 14 September 2006 for a hearing on 11 October 2006. That letter clearly set out the applicants’ right to appear and present new documents, witnesses and written arguments in support of their claims. The applicants replied to the Tribunal stating their intention to attend but asked for the hearing to take place in Griffith. The Tribunal decision indicates that the applicants appeared on 11 October 2006 and the applicant husband gave evidence with the assistance of a Gujarati (Indian/Pakistani interpreter). The applicant wife declined to give evidence. On 23 October 2006, the Tribunal issued an invitation to comment on information pursuant to s.424A of the Act. In that letter, a number of questions were put to the applicants. On the information available it appears that the Tribunal conducted a hearing in a satisfactory manner and there can be no complaint that the applicants were denied an opportunity to present their claims.

6. Mr Mitchell submits that the plausibility of various aspects of the applicants’ claims was put to the applicant husband at the Tribunal hearing and in the s.424A letter (CB 70-71, 81-85). It is submitted that this issue was determinative of the applicants’ claims. The applicant husband was given opportunities at the hearing and subsequent to the hearing to respond to the various aspects of his claims that gave rise to the Tribunal’s rejection of them: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [33]-[43]. It is submitted that the Tribunal’s appraisal of the claims as lacking in credibility could not have surprised the applicants as it might have in the delegate’s decision (CB 49).

7. I accept this submission and agree that the applicants were provided with every opportunity to present their claims to the Tribunal and that they would have been fully aware of the credibility issue which had been raised and canvassed in the delegate’s decision.

8. Mr Mitchell contends that the reason for the Tribunal decision was that the applicants’ claims were not plausible in light of the husband’s testimony, their visitor’s visa application and country information about India. The Tribunal’s appraisal of the plausibility of their claim was not subject to s.424A(1) of the Act as that appraisal was not “information”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]-[25]. Mr Mitchell contends that the applicant husband’s testimony was given for the purposes of his application for review, notwithstanding that the answers given in response to questions asked by the Tribunal may have been informed by material taken from their visitor’s visa application: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41]-[64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 at [48]; SZDPY vMinister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]. I agree with Mr Mitchell’s submission that the applicant husband’s testimony was therefore exempt from s.424A(1) by reason of s.424A(3)(b). Significantly, the information conveyed in the visitor’s visa application relied upon by the Tribunal was put to the applicants in the letter inviting them to comment on certain information dated 23 October 2006 (CB 70-71).

9. Mr Mitchell also submits that the country information relied upon by the Tribunal was not specifically about the applicants or another person but rather about a class of persons and, as such, that information was exempt from s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

10. Mr Mitchell further contends that it was open to the Tribunal to refer to the Department’s processes in granting visitor’s visas (CB 87.6): NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 of [13]; Simjanoski v La Trobe University [2004] VSC 180 at [28]-[30]; Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503 at [80]. That was not “information” but formed part of the Tribunal’s thought process. In any event, it was not about the applicants or another person but about a class of persons, namely people who applied for visitor’s visas.

11. I agree with the overall submission made by Mr Mitchell that the Tribunal’s review and hearing complied with its obligations as per Division 4 of Part 7 of the Act. I am satisfied that the Tribunal was under no obligation to do anything further to comply with those provisions: s.422B; Lay Lat; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.

Conclusion

1. The applicants in these proceedings are self-represented litigants and were assisted at the hearing by a qualified Gujarati interpreter. I acknowledge the difficulties that applicants in this position face and the limited assistance available to them. However, the assistance offered to them in preparation of this matter was not pursued, resulting in the claims in the application being nothing more than simplistic and formulaic statements about judicial review. The applicant wife failed to attend the Court hearing and the applicant husband made only one brief comment claiming that he did not have sufficient time to obtain further documents from India. Mr Mitchell assisted the Court with written submissions which addressed each of the issues raised by the applicants. I accept those submissions in that they correctly and adequately address the claims raised by the applicants. None of the grounds raised in the application can be sustained, nor is it apparent from the contents of the Court Book or on the face of the Tribunal decision that any other ground of judicial review exists. In the circumstances, the application should be dismissed with costs.

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 twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  4 December 2007