SZKTV & Ors v Minister for Immigration & Anor
[2007] FMCA 1468
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1468 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas - applicants are citizens of India claiming fear of persecution by Muslims – where applicants did not attend the Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| First Applicant: | SZKTV |
| Second Applicant: | SZKTW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1865 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 August 2007 |
| Date of last submission: | 16 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $4,400.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1865 of 2007
| SZKTV |
First Applicant
| SZKTW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 17th May 2007. The Tribunal handed its decision down on 31st May 2007. The Tribunal affirmed the decision of a Delegate of the Minister not to grant Protection (Class XA) visas to the Applicants.
The Applicants filed an application and an affidavit on 14th June 2007 seeking judicial review of the Tribunal decision.
Background
The background to this matter is that the Applicants are citizens of India. They arrived in Australia on 4th January 2007. They applied for Protection (Class XA) visas on 15th January in that year. Their applications for visas were refused on 19th February 2007. On 16th March the Applicants applied to the Refugee Review Tribunal for a review of the decision of the Delegate. The Applicants enlisted the services of a Migration Agent, Sashi Singh & Associates who prepared an application for review and lodged it on behalf of the Applicants.
The Tribunal wrote to the Applicants care of their Migration Agent on 28th March 2007 advising that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter contained an invitation to the Applicants to appear before the Tribunal to give oral evidence and to present arguments at 2:00pm on 8th May 2007. The Tribunal noted that an interpreter in the Gujarati language would be made available.
The Applicants' Migration Agent replied to the hearing invitation on 12th April 2007. In a letter that enclosed the Response to Hearing Invitation signed by the First Applicant, the agent advised the Tribunal:
You are to note that the applicant for review will be attending the hearing on 8 May 2007 at 2.00pm and he will be requiring a Gujarati interpreter.[1]
[1] See Court Book at page 87
As it turned out neither Applicant attended. The Tribunal after waiting until 2:30pm arranged to telephone the Applicant's Migration Advisor seeking advice as to whether the Applicants were intending to appear at the hearing. The Tribunal noted that the advisor told the Tribunal that he had not heard from the Applicants for some time and did not know if the Applicants would keep the appointment.
The Tribunal also noted that an officer of the Tribunal rang the Applicant, presumably the First Applicant, several times on his nominated mobile telephone number but was unable to contact him.
At 3:00pm the Tribunal released the interpreter as the Applicants had failed to appear. The Tribunal went on to exercise its powers under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the Applicants to appear before it.The Tribunal signed its decision on 17th May 2007, nine days after the hearing, and handed that decision down on 31st May 2007. A copy of the Tribunal decision record can be found in the Court Book at pages 97 through to 107. The Tribunal considered the Applicant's claims and evidence as those claims appeared on the Department's file at pages 100 through to 102. The Tribunal summarised the claims of the First Applicant on whose claims the Second Applicant relied as follows:
· Muslim gangs extort money from him and have threatened to kill him because he is a Hindu businessman.
· He supported the local BJP Party and has been targeted.
· He is a “(Name deleted)[2]” and Muslims hate the “(Name deleted)”.
· He is a “(Name deleted)” and all the Thakores hate “(Name deleted)”.
· The Dawood Ibrahim Gang has threatened to harm and kill him and his family because he is a (Name deleted).[3]
[2] Name deleted to comply with the requirements of s.91X of the Migration Act.
[3] See Court Book at page 101
The Tribunal set out Country Information relating to Gujarat and ongoing communal violence between Hindus and Muslims at pages 102 through to 104 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out at pages 104 through to 107. The Tribunal noted that the Second Applicant had not brought forward any claims of her own and is included as a dependent only on the first named Applicant's application and the findings and reasons relate to the claims of the first named Applicant.
The Tribunal noted that the First Applicant claimed to be a national of India and claimed to have travelled on an Indian passport. The Tribunal noted that the Tribunal Member had seen a copy of the Applicant's passport in the Department's files and was thereby satisfied that the Applicant was outside the country of his nationality and that his country of nationality was India for the purpose of Article 1A(2) of the Convention. The Tribunal summarised the Applicant's claims in this way:
The applicant's claims are essentially that he fears persecution on the Convention related basis of his religion, membership of a particular social group and his political opinion. He claims he has been subject to persecution in the past for these reasons and fears persecution should he return to India in the future. He claims that the police were unwilling and unable to give him protection.[4]
[4] See Court Book at page 104
The Tribunal then set out its findings on the Applicants' case in what, in my view, is a very well set out and logically written findings and reasons passage. The Tribunal dealt with various aspects of the claim under the following headings:
a)Incidents of harm.
b)Membership of the BJP and political activity.
c)Religious freedom.
d)Membership of a particular social group.
e)State Protection.
f)Future harm.
Dealing with those headings in turn, in the section headed "Incidents of Harm" the Tribunal noted that the Applicant claimed to have been attacked and hospitalised but said:
However he provided no evidence of his hospitalisation or further details such as dates or the extent of his injuries, nor did he provide sufficient details of the temple attack, or of the other incidents to satisfy the Tribunal that he was attacked or assaulted as claimed.
In respect of the section headed "Membership of the BJP and political activity" the Tribunal considered the Applicant's claims and the Country Information and stated:
On the basis of the evidence before it the Tribunal is unable to be satisfied that this applicant and his father were attacked and/or harassed or extorted as claimed, for the reasons claimed.[5]
[5] See Court Book at page 105
In the "Religious freedom" section the Tribunal noted the Applicant claimed that he feared persecution as a Hindu at the hands of Muslims and referred to the Applicant's claims and referred to Country Information and concluded:
On the basis of the evidence before it, the Tribunal cannot be satisfied that the applicant suffered religious persecution as claimed.
In the section entitled, "Membership of a particular social group" the Tribunal set out the Applicant's claim that he and his family had been victims of numerous incidents of violence because of their membership of a particular social group being successful business people. The Tribunal summarised its findings on this claim by saying:
On the basis of the evidence currently before it, the Tribunal is unable to be satisfied that the applicant suffered persecution for the reasons claimed.
In the section of the findings headed "State Protection" the Tribunal noted the Applicant's claims that the police refused to act upon numerous violent incidents that he either witnessed or were perpetrated against him and found:
On the basis of the evidence before it, the Tribunal is unable to be satisfied that the state failed to offer the applicant the protection to which he was entitled.[6]
[6] See Court Book at page 106
On the section entitled "Future harm" the Tribunal noted the Applicant's claims that he could not relocate within India because the Indian government could not guarantee his protection. The Tribunal considered Country Information relating to the law and order situation in India generally and in Gujarat in particular and found:
On the basis of the evidence before it, the Tribunal is unable to be satisfied that the applicant's fears of persecution in the future are well founded.
The Tribunal concluded that it had considered the issues and claims made by the First Applicant individually and cumulatively and:
Based on the evidence currently before it, the Tribunal cannot be satisfied that the first named applicant suffered past persecution or that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to India in relation to his race, his religion, his nationality, political opinion or membership of a particular social group or to an alleged or imputed race, religion, nationality, political opinion or membership of a particular social group.[7]
[7] See Court Book at page 106
The Tribunal affirmed the decision not grant the Applicants protection visas.
Application for Judicial Review
The Applicants have filed an amended application seeking a declaration that the decision of the Refugee Review Tribunal is null and void and seeking writs of mandamus, certiorari and prohibition. The orders are problematic in two areas. First, the order in the nature of mandamus seeks an order directed to the Tribunal to re-hear and re-determine the Applicant's application for review according to law.
In my view, it is not the place of the Court to direct the Tribunal whether or not it conducts a hearing. If the Court makes an order in the nature of mandamus it should require the Tribunal to determine the Applicant's application for review according to law, but the question of a re-hearing is a matter for the Tribunal.
Order 3 sought by the Applicant relating to a writ of certiorari is also problematic in that the order seeks a writ of certiorari:
Directed to the Respondent removing into this Court to be quashed the purported decision of the Refugee Review Tribunal dated 03 October 2006.
This is clearly an error. There is no decision of the Refugee Review Tribunal dated 3rd October 2006 in this matter and on the evidence before me the Applicant had not arrived in Australia until 4th January 2007.
I explained to the First Applicant who attended Court that the task of the Court on judicial review is to determine whether or not the Tribunal's decision is affected by jurisdictional error.
I asked the Applicant some questions about the grounds in his application ascertained from the Applicant that:
a)neither he nor his wife attended the Tribunal hearing and
b)neither he nor his wife attended the conference scheduled with a Mr David Ash, barrister, to whom the Applicants were referred under the Refugee Review Tribunal legal advice panel scheme;
A letter from Mr Ash appears on the Court file.
The Applicant in his affidavit filed on 14th June 2007 said:
I lodged my Protection visa application to the DIMA and later reviewed to the RRT. I was unable to attend RRT hearing because of my sickness. The Tribunal did not provide me an opportunity to appear before the Tribunal and explain my situation in India.
The first comment to be made is that the Tribunal did provide the Applicant an opportunity to appear. The Tribunal scheduled a hearing and invited the Applicant to it in plenty of time and the Applicant's Migration Agent indicated that the First Applicant at least would be attending and would require a Gujarati interpreter. I note from the Court Book at page 90 in the RRT hearing record that the Tribunal did provide a Gujarati interpreter.
The interpreter in fact is the same interpreter who is here at Court today and is interpreting from English into Gujarati and from Gujarati into English. The Applicant gave a different explanation to the Court as to his non-attendance at the hearing. No mention was made of the illness. The Applicant indicated that his wife was afraid to attend the hearing and that he asked a student who was visiting the town where the Applicant now lives for work whether it would be okay if they did not go to the hearing. He said that the student said that it would be okay if they did not attend the hearing.
I understand from the Applicant that by the time this exchange took place the Applicant was no longer in contact with his Migration Agent although it appears from the Court Book that the Migration Agent was not aware that the Applicant was seeking other advice.
The Applicant did not tell the Court what particular course the student from who he took advice was studying but the material before me indicates that the Migration Agent had properly advised the Tribunal that the First Applicant was going to attend and the agent did not appear to be aware that the Applicants were not going to attend. In my view, no criticism can be directed towards the agent in this regard.
The amended application prepared for the Applicant by another person sets out two ground which I will quote:
(1)The Tribunal has wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution the applicant claimed.
Particulars: s.91R(1)(b) and (c) of the Act required the persecution to be of serious harm and systematic and discriminatory.
The Tribunal failed for not providing more opportunities to the applicant and therefore generalised the applicant's claim and therefore failed to apply correct test in accordance with s.424A(1) of the Migration Act. Reference SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24.
(2)The Tribunal has importantly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the applicant's religion and membership of a particular social group and as a result all he faced financial hardship, to whom the Australia has protection obligation as a member of such group and therefore the Tribunal's decision was involved jurisdictional error and failure of jurisdiction or misapplication of law and procedure. The Tribunal concluded that the applicant can relocate in other parts of India and therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN Convention and therefore relocation principles is not the correct test by the Tribunal therefore misapplying the law is in fact failure of the Tribunal's jurisdiction. The matter should be remitted to the Tribunal for further determination and to decide in accordance with the law and procedures.
Neither of those grounds, the first of which seems to include several grounds, contains any jurisdictional error. First of all this is a case where the Applicants decided upon the advice of a mysterious student, not to attend the hearing of the Refugee Review Tribunal. It is well known in this Court that a failure to attend a Refugee Review Tribunal hearing is a most serious error and is a step that is almost guaranteed to bring about failure. The first matter to be considered is whether the Tribunal correctly applied the provisions of s.426A of the Migration Act. Section 426A says:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
In this case the Applicant Migration Agent returned a signed copy of the Response to Hearing Invitation indicating that the First Applicant wished to attend the hearing and would require an interpreter in the Gujarati language. The Tribunal was entitled to rely on that. I note from the Tribunal decision record at page 100 of the Court Book that it was not until 2:30 pm, half an hour after the scheduled time for the hearing to start when the Applicants had not attended, that the Tribunal telephoned the Applicants' advisor asking whether the Applicants were going to come.
The Tribunal noted that the Applicant said that he had not heard from the Applicants for some time and did not know if the Applicants would keep the appointment. The Tribunal then noted that the Tribunal rang the Applicant several times on his nominated mobile number but was unable to contact the Applicant.
Ms Sirtes of counsel, who appears for the Minister, has drawn the Court’s attention to the RRT hearing record, a copy of which appears at page 90 of the Court Book where the mobile phone numbers of both Applicants and the telephone number of the Migration Agent are clearly typed on the form. Counsel drew my attention to the Applicant's mobile telephone number on the RRT hearing record form and noted that it was identical to the mobile telephone number for the Applicant on the application for review which appears quite clearly at page 82 of the Court Book. The Tribunal went on to note:
As at the date this decision was signed, the applicants have not subsequently contacted the Tribunal to explain their failure to attend the hearing.[8]
[8] See Court Book at page 100
The Tribunal signed the decision on 17th May; that is nine days after the hearing. The Tribunal did not hand the decision down until 31st May. Had the Applicants or anyone on their behalf, contacted the Tribunal and explained that the Applicant really was sick as he deposed in his affidavit and perhaps produced a medical certificate, then there would have been ample time for the Tribunal to schedule another hearing if the Tribunal were satisfied as is provided in sub-s.426A(2). There was even time after the date of signature of the decision for the Tribunal to recall the decision before handing it down, if the Tribunal was satisfied that there was a proper reason for the Applicants' non attendance.
In my view no criticism can be directed at the way the Tribunal has dealt with its discretion under s.426A of the Migration Act. The fact is that the Applicants chose not to attend the Tribunal hearing. The Applicants claim in ground 1 of some form of a misapprehension, or a wrong application of the law as far as s.91R sub-s.(1) of the Migration Act is concerned. The Tribunal decision at page 99 sets out a very clear exposition of the requirements in sub-s.91R(1) dealing with the question of persecution in ss.91R(1)(b) and 91R(1)(c).
The Tribunal also refers to past persecution and a fear of persecution in the future, at page 104 of the Court Book. The Tribunal did not misinterpret or misapply s.91R of the Migration Act. The claim that the Tribunal failed for not providing more opportunities to the Applicant must also fail. As I have indicated the Tribunal did everything that could be asked of it to provide the Applicants with a hearing and the Applicants chose not to attend.
As to the claim of a failure to apply the "correct test" in accordance with s.424A (1) of the Migration Act it is quite clear that s.424A(1) does not apply. The reason for the decision was the inadequacy of the information provided. The Tribunal had made it clear in its invitation to a hearing on 28th March 2007 that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.
When the Applicants neither attended the hearing nor provided any additional documentary evidence it is hardly surprising that the Tribunal was still unable to make a favourable decision. The Tribunal in its clear and logically set out and detailed analysis of what information it had made it quite clear in respect of each aspect of the Applicants' claim that on the basis of the evidence before it, it was unable to be satisfied that the Applicant had suffered persecution. The question of information does not arise as was held by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29]:
The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.
(See also SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [32]. See also SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 particularly at [16]).
The Applicant in the second ground referred to the Tribunal dealing with the Applicant's claims relating to state tolerance, meaning the issue of state protection, and claimed that the Tribunal fell into jurisdictional error. The Tribunal considered the question of state protection as part of the Applicant's claim but on the basis of the evidence before it was unable to be satisfied that the state failed to offer the Applicant the protection to which he was entitled. (See Court Book page 106). The Tribunal did not find that the Applicant could relocate to other parts of India, even thought the applicant claims it.
The Tribunal noted the Applicant's claim that he could not relocate within India because the government could not guarantee his protection but on the basis of the evidence before it the Tribunal was unable to be satisfied that the Applicant's fears of persecution in the future were well founded. The Applicant claimed that the Tribunal did not apply the correct test of relocation principles.
The Tribunal did not have to apply any test of relocation principles because the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason on the basis of the information before it. The question of relocation did not arise.
I am satisfied that all of the grounds in the Applicant's application must fail. I am mindful of the fact that the Applicants are not legally represented in these proceedings although they were given the opportunity to obtain legal advice without charge from a barrister on the RRT legal advice panel. A referral was made and the barrister set up a conference and I note from the Court file, and the Applicant has confirmed, the Applicants did not attend the conference with the barrister. The Court can refer applicants to legal advice but cannot make them access it.
I have read through the Tribunal decision myself, independently of the Applicants' amended application which I understand was not served on the lawyers for the Minister, and independently of the submissions on behalf of the Minister, both written and the oral submissions made today by Ms Sirtes of counsel. There is no arguable case of any jurisdictional error. The Tribunal decision is actually one of the better decisions that the Court has seen recently in that it is thorough, well structured and well set out and the Tribunal Member has approached the case in a constructive and logical manner. There is no jurisdictional error. The Tribunal decision is a privative clause decision defined by sub-s.474(2) of the Migration Act.
Consequently, the decision is final and conclusive and not subject to declaration or orders in the nature of certiorari, mandamus or prohibition. The application will be dismissed.
This is a proper matter for an order for costs in favour of the First Respondent Minister. The Applicants have been unsuccessful in their claim. The amount sought, inclusive of counsel's fees, is $4,400.00 which if I may say so is a modes sum and is certainly well within the scale provided by the Rules. The First Applicant has indicated some difficulty in meeting the costs and I will allow time to pay.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 23 August 2007
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