SZKOZ v Minister for Immigration

[2007] FMCA 1132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1132

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.91R, 422B, 424A, 425

First Applicant: SZKOZ

Second Applicant: SZKPA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1419 of 2007

Judgment of: Driver FM

Hearing date: 16 July 2007

Delivered at: Sydney

Delivered on: 16 July 2007

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms M Mafessanti
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1419 of 2007

SZKOZ

First Applicant

SZKPA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 31 March 2007, and was handed down 12 April 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, a husband and wife.  The first applicant, the applicant wife, is a citizen of Nepal but had been living in India prior to coming to Australia.  The second applicant is from India. 

2. The applicants arrived in Australia on 7 February 2004.  They applied to the Minister's Department for protection visas on 4 March 2004. 

   
   

   A delegate of the Minister refused that application on 23 April 2004.  The applicants sought review by the Tribunal which made a decision to affirm the delegate's decision on 13 February 2005.  That decision was set aside by order of this Court on 27 September 2006.  The Tribunal was reconstituted and reconsidered the review application. 

3. The applicants had made claims of political, particular social group, and religious persecution.  The political claim was based upon the applicants' alleged activities as a Maoist, and the second applicant made his own claim based upon his support to his wife.  There was also a particular social group claim, apparently based on family association.  The religious claim was a sur place claim based upon the applicants' alleged conversion to Christianity in Australia.

4. The Tribunal was unwilling to make a favourable decision on the papers alone and the applicants were invited to a hearing.  The first Tribunal conducted two hearings on 28 October and 16 November 2004.  The second Tribunal conducted a hearing on 11 January 2007.  However, due to the unavailability of an interpreter to complete the hearing, the hearing was adjourned until 24 January 2007.

5. The Tribunal accepted that Maoists and their supporters faced a risk of persecution in Nepal.  The Tribunal also accepted that Maoists and their supporters in India faced a risk of refoulement from India to Nepal.  The Tribunal also accepted that Christian converts faced a risk of persecution in Nepal, and sometimes also in India.  However, the Tribunal did not accept that either applicant or the first applicant's parents are Maoists.  The Tribunal did not accept either applicant's claims of Maoist activity or support.  It followed that the Tribunal did not accept that the applicants suffered harm in the past by reason of those alleged activities.  Further, the Tribunal did not accept that the applicants are genuine Christians, or that they would practise Christianity if they returned to India or Nepal.  The Tribunal found that they had invented this claim to assist their applications for protection visas.  The Tribunal went on to disregard the applicants' conduct in support of their sur place claim pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).

6. These proceedings began with a show cause application filed on 4 May 2007.  The applicants did not in that application identify either the date of the Tribunal decision or the date of their notification of it.  However, when I conducted a first court date hearing on 31 May 2007 they confirmed the date of the Tribunal decision[1] was the date of notification.  I find that the application was filed within time.

   [1] when the decision was handed down

7. The application is supported by a short affidavit. I accepted paragraph 1 of the affidavit as a submission and paragraph 2 as evidence. I also accepted as evidence the court book filed on 14 June 2007. I made orders on 31 May 2007 listing the matter for a preliminary hearing before me today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

   
   

   I ordered the applicants to file and serve an amended application giving particulars of each ground of review relied upon by 5 July 2007. 

   
   

   In default of compliance with that order, the Minister had the opportunity to seek to have the application summarily dismissed. 

   
   

   No amended application was filed, but the Minister has not sought default judgment.

8. The show cause hearing was unable to proceed at 10.15am today because of the unavailability of the Minister's solicitor.  I stood the matter in the list until 4.00pm today.  At that time the first applicant made an oral application for an adjournment.  The applicants sought an adjournment on the basis that they were unprepared for today's hearing.  The first applicant explained that she recognised that her show cause application was inadequate and wanted more time to file and serve an amended application.  The first applicant told me that she had initially not sought legal assistance because of the cost, but had now changed her mind.  She said that in the light of advice received from a panel adviser under the Minister's free legal advice scheme she now recognised the desirability of legal assistance.  The applicants both told me that the advice from the panel adviser was only received last Friday, 13 July 2007.  I do not know and did not ask what that advice was. 

9. I considered the adjournment application, but rejected it.  The applicants are in the same position as most other applicants before the Court in this jurisdiction.  It was their choice not to seek legal assistance until this point.  They would no doubt have been assisted by legal representation, but the fact that they have belatedly recognised the benefit they would gain from assistance is not a reason for an adjournment at this point. 

10. The first applicant reiterated her request for an adjournment in her oral submissions in reply.  I have reconsidered the matter, but I confirm my rejection of the adjournment application.  The applicants have had adequate time to prepare for today's hearing. 

11. In view of the fact that the applicants were not represented by a legal practitioner I have not restricted myself to the grounds advanced in the application.  I have myself considered whether any arguable case of jurisdictional error arises from the material. 

12. The applicants assert in their affidavit and in their oral submissions that the Tribunal made various errors.  These are not particularised, but in her oral submissions the first applicant submits that the Tribunal did not ask appropriate questions and made numerous factual errors.  Apart from a general reference to wrong dates, however, these errors were not particularised. 

13. The first ground in the application is a general assertion of jurisdictional error.  In the absence of particulars the allegation is meaningless. 

14. The second ground in the application is an assertion that the decision was made unfairly. The obligations on the Tribunal to observe the rules of procedural fairness must now be read in the light of s.422B of the Migration Act. I consider the Tribunal’s statutory obligations below. To the extent that the second ground is intended to be an allegation of apprehended bias, there is no evidence to support it.

15. The third ground is an assertion that the Tribunal did not consider all aspects of the applicants' claims.  I asked the applicants to identify what elements or integers of their claims were not considered.  They did not identify any such elements or integers. 

16. The fourth ground is an assertion of breach of natural justice, which is the same as an allegation of a want of procedural fairness.  This ground adds nothing to the second ground. 

17. The Tribunal was obliged under the Migration Act to consider the applicants' claims. This was a relatively complex matter. Numerous factual allegations had been made by the applicants. They had provided written statements and some written evidence in support of the claims. Their claims appear to have been expanded upon at some length in the several hearings conducted by the Tribunal. On my reading of the record of the Tribunal decision, the Tribunal appears to have succeeded in marshalling all of the applicants' claims and considering them. Because the Tribunal was unable to make a favourable decision on the papers alone, the Tribunal was obliged pursuant to s.425 of the Migration Act to invite the applicants to a hearing. That was done. The Tribunal properly adjourned the hearing on 11 January 2007 when the interpreter was unable to complete it. The hearing opportunity afforded the applicants was a real one.

18. The applicants were not invited to comment on any adverse information pursuant to s.424A of the Migration Act. In my view, an obligation of disclosure pursuant to that section did not arise because all of the information relied upon by the Tribunal to affirm the delegate's decision was information provided by the applicants themselves to the Tribunal or was general country information. The applicants failed before the Tribunal because, although the Tribunal accepted that Maoists and Christians faced a real risk of persecution in Nepal, and also possibly in India, the Tribunal did not accept that either applicant was a Maoist or Maoist sympathiser or a genuine Christian. The Tribunal took into account written material submitted by the applicants, but discounted it. In my view, the adverse credibility findings made by the Tribunal were open to it on the material before it.

19. The Tribunal properly considered the applicants’ claims against the various categories requiring consideration under the Refugees' Convention.  The Tribunal was required to disregard the applicants’ conduct engaged in in order to set up a sur place claim pursuant to s.91R(3) of the Migration Act once the Tribunal had found that the conduct had been engaged in in order to support the applications for a protection visa. I see no error in the Tribunal's approach.

20. I find that the applicants have failed to identify any arguable case of jurisdictional error. Neither is any arguable case apparent to me from my own reading of the material. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

21. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The first applicant enquired about who costs would be payable to, but did not otherwise seek to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 July 2007