SZKHV v Minister for Immigration & Citizenship
[2009] FCA 823
•5 August 2009
FEDERAL COURT OF AUSTRALIA
SZKHV v Minister for Immigration & Citizenship [2009] FCA 823
SZKHV and SZKHW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 315 of 2009
BESANKO J
5 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 315 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKHV
First AppellantSZKHW
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
5 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants are to pay the first respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 315 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKHV
First AppellantSZKHW
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
5 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Magistrates Court: SZKHV and Anor v Minister for Immigration and Citizenship and Anor [2009] FMCA 264. On 31 May 2009, that Court made an order that the proceeding before the Court, commenced by way of application filed by the appellant on 22 September 2008, be dismissed. The application was an application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) in respect of a decision made by the Tribunal on 6 August 2008.
The appellants are citizens of India. They arrived in Australia on 12 June 2006 and made applications for Protection (class XA) visas on 4 July 2006. Their applications were refused by a delegate of the then Minister for Immigration and Multicultural Affairs and they made applications for review to the Tribunal. The Tribunal affirmed the delegate’s decisions with respect to the applications. The appellants made an application to the Federal Magistrates Court for constitutional writs. On 12 November 2007, the Federal Magistrates Court set aside the decision and remitted the matters to the Tribunal to be determined according to law. On 6 August 2008, the Tribunal, which was differently constituted, affirmed the decisions not to grant protection visas to the appellants. The appellants again made an application to the Federal Magistrates Court for constitutional writs.
The appellants are husband and wife. The first appellant is the wife and the second appellant’s claim is dependent on her claim.
The first appellant claims that in India she was a member of the Christian scheduled caste community and a member of the People’s War Group (“PWG”). She claims that, as a result of her membership of the PWG, she was attacked, arrested, tortured and imprisoned. She also claims that, because of her membership of the PWG, an attempt had been made on the life of her infant son.
The Tribunal member accepted the first appellant’s claim that she attended classes on Marxism and that through those classes she became involved in the PWG. The Tribunal member doubted the claim that the classes run by the PWG were advertised by public posters given that the PWG is a proscribed organisation under India’s Unlawful Activities (Prevention) Act 1967.
The Tribunal member did not accept the first appellant’s claim that she was attacked, arrested, imprisoned or tortured, nor that the life of her infant son was threatened as a result of her involvement in the PWG. The Tribunal member said that the appellant’s account was “vague, implausible and inconsistent with the evidence given by her husband”. As to the inconsistencies with her husband’s evidence, the Tribunal member gave various examples, including dates upon which she was imprisoned, the appellant’s involvement in the PWG and the attempts made on her son’s life. The Tribunal member said that she did not accept that there had been an attempt on the life of the appellants’ son.
The Tribunal member rejected an assertion by the first appellant that inconsistencies in her evidence were due to stress caused by trauma. The Tribunal member said that while it was possible that the first appellant had some involvement with the PWG, she did not accept that, as a result of this involvement, the first appellant was ever arrested, physically attacked, imprisoned, tortured or that any threats were made to her son’s life. The Tribunal member said that she was not satisfied that the first appellant had ever been subjected to serious harm as a result of any involvement in the PWG, nor that she would be at risk of any such harm upon her return to India. The Tribunal member said that there was no evidence before her that state protection would be “discriminatorily denied” for a Convention reason.
The Tribunal member considered the first appellant’s claim that she had a well-founded fear of persecution because she belonged to a Christian scheduled caste community. The Tribunal member accepted that the first appellant had been raised as a Christian and, as such, may well have been subject to some discrimination for this reason, including some employment related discrimination. She said that there was, however, no evidence before her that any treatment of the first appellant as a low-caste Christian was such as to amount to persecution. The Tribunal member rejected the first appellant’s evidence that there had been attacks on her house. She said that she was not satisfied that the first appellant had experienced serious harm or was at risk of serious harm as a result of her membership of the Christian scheduled caste community. She said that the first appellant did not have a well-founded fear of persecution on the basis of her membership of the Christian scheduled caste community. She said that she accepted that members of the Christian scheduled caste community experienced “minor social disadvantages which the Indian Government has made efforts to address but do not experience persecution that could be described as systematic and discriminatory”. The Tribunal member concluded that on the evidence before her, she could not be satisfied that the first appellant had a well-founded fear of being persecuted for any Convention-related reason in the foreseeable future.
The Tribunal member was not satisfied that the appellants were refugees within the Refugees Convention and she affirmed the decision of the delegate.
In delivering her reasons on the appellants’ application for constitutional writs, the federal magistrate noted that the grounds of the original application were that the Tribunal had breached the rules of natural justice and procedural fairness and had committed jurisdictional error and that the ground of the amended application was that the Tribunal had acted in breach of s 424A of the Migration Act 1958 (Cth) (“the Act”).
The federal magistrate noted that the amended application was not supported by particulars, evidence or written submissions and that the first appellant made no meaningful submissions in support of the amended application or in support of her application generally. The federal magistrate analysed the Tribunal’s reasons and concluded that “the complaints made by the applicant in her oral submissions to this court and the grounds of her application and amended application are not supported by a fair reading of the Tribunal’s decision record”.
The federal magistrate referred to a letter from the Tribunal which was sent to the appellants on 28 April 2008 in apparent compliance with s 424A of the Act. The federal magistrate concluded that the Tribunal had complied with the provisions of s 424A. The federal magistrate reached the conclusion that the findings of fact made by the Tribunal were based on the evidence and material before it and that they were open to the Tribunal. She said that a fair reading of the Tribunal’s decision made it clear that it had reached conclusions based on findings made by it and that it had applied the correct law in reaching those conclusions. She said that, in the circumstances, the Tribunal had complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
On the appeal to this Court, the grounds of appeal were identified as follows:
“1. Jurisdictional error.
2. Breached of natural justice.
3. Breached of section 424A of the Migration Act.”
The first appellant stated in her notice of appeal that:
“I am unrepresented. I will file and serve an amended notice of appeal and written submissions when required by this Court. I still rely on the grounds and particulars stated in my application and my written submissions made with the Federal magistrate court.”
The first appellant filed written submissions and both she and her husband made brief oral submissions. In her written submissions, the first appellant argued that the Tribunal should have sent her another letter after her letter in response to the Tribunal’s letter dated 28 April 2008. This is no more than an assertion and there is no basis for it.
There is nothing in the written submissions and nothing was said by the appellants in the course of their oral submissions which suggests that the federal magistrate erred in dismissing their application for constitutional writs.
In the circumstances, the appeal must be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 5 August 2009
The Appellants appeared in person. Counsel for the Respondents: Mr Y Shariff Solicitor for the Respondents: Clayton Utz
Date of Hearing: 3 August 2009 Date of Judgment: 5 August 2009
1
0