SZKUP v Minister for Immigration
[2007] FMCA 1592
•6 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1592 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicants are citizens of India claiming a fear of persecution for reason of imputed political opinion and circumstances of a business dispute – state protection – merits review – no reviewable error. |
| Migration Act 1958 (Cth) ss.424A, 425, 474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 4 referred to. |
| First Applicant: | SZKUP |
| Second Applicant: | SZKUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1960 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 September 2007 |
| Date of last submission: | 6 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $4,900.00.
I allow five (5) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1960 of 2007
| SZKUP |
First Applicant
| SZKUQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants, who are citizens of India, ask the Court to set aside a decision of the Refugee Review Tribunal that was handed down on
24th May 2007. That decision affirmed a decision of a delegate of the Minister not to grant protection visas to the Applicants. The Applicants also ask the Court to make an order remitting their applications for visas to the Refugee Review Tribunal for further consideration according to law.
The Applicants rely on the claims of the First Applicant who is the husband. The Second Applicant is the wife of the First Applicant. The claim is framed as a claim under the Refugees Convention for protection on the grounds of imputed political opinion and a claim that the First Applicant is in fear of harm in his own country arising out of a business dispute for which he claims that he is unable to receive appropriate protection in India from the authorities.
Grounds of Review
The grounds of the Applicants' application for review to this Court are:
a)A breach of procedural fairness in making the decision.
b)A breach of s.424A of the Migration Act.
Background
The Applicants arrived in Australia from India on 4th December 2006 and applied for Protection (Class XA) visas on 8th January 2007. A delegate of the Minister refused their applications on 6th February 2007.
Application for Review by the Refugee Review Tribunal
The Applicants applied to the Refugee Review Tribunal on 26th February 2007. The Tribunal wrote to the Applicants and invited them to attend a hearing of the Tribunal on 18th April. The First Applicant appeared and gave evidence on behalf of both himself and his wife. The Tribunal asked him some questions about his claim.
The basis of the Applicant's claim is that the First Applicant's father had started a pharmaceutical company in 1989 in partnership with another man. That partner wished to leave and a new partner came, but a dispute between those partners arose. The First Applicant claimed that he and his father became involved in the dispute which led to violence. The Applicant and his brother were involved in a motorcycle accident which caused his brother to lose the use of his hand and the Applicant claims that this accident was caused by people involved in the business dispute.
The Applicant joined a political party, BJP, and claims that the former partner was the supporter of another political party, the Congress Party. The Applicant claimed that there was a plan to implicate him in an inquiry into a bomb blast that had occurred because the Applicant was an active member of the BJP. The Applicant claims that he was not able to obtain satisfaction from the police in respect of these actions from the former partner.
The Tribunal signed its decision on 7th May and handed that decision down on 24th May 2007. A copy of the Tribunal decision record can be found in the Court Book at page 106 to 115. In that decision the Tribunal considered the Applicant's claims and evidence in respect of the application for a protection visa and the Applicants' evidence at the hearing. The Tribunal also considered Independent country information relating to India from the United States Department of State Country Report on Human Rights Practices of 2005 and from other documents including the India World Fact Book of Criminal Justice Systems and a report from the International Commission of Jurists of 2003. That country information is quoted at pages 113 and 114 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal in its findings and reasons found that the First Applicant was a citizen of India based on the evidence of his passport. The Tribunal did not, however, reach a state of satisfaction that the Applicant's claims had any sufficient connection to the Refugees Convention. The Tribunal in its findings and reasons said:
In dealing with this application the Tribunal has formed a view that the first-named applicant has suffered considerable difficulties as a result of the break down in the relationship between the first-named applicant's family and their former business partners.[1]
[1] See Court Book at page 115
The Tribunal was satisfied about the evidence of the dispute. The Tribunal was satisfied that the Applicant had joined the BJP and become an active member of that party. He was satisfied that the Applicant and his brother were involved in a motor vehicle accident in which the brother was seriously injured and the government of India set up an inquiry into a bomb blast in Mumbai and that the Applicant's former business partner tried to implicate him in some way in that bomb blast.
However, the Tribunal was not satisfied that these matters led to a well-founded fear of persecution for reason of political opinion, saying:
The Tribunal is of the view that the above situation arose as a result of financial and business dealings between the applicant and his family, on the one hand and their former business partners on the other. The Tribunal is not satisfied that the harassment and threats that the applicant and his family were subjected to was in any way connected to the applicant's political opinions or his membership of the BJP party.
The Tribunal does not accept that the applicant reported these incidents to the police and that the police did not do anything about it. Independent Country Information indicates that the Indian government is a democracy and generally respects the rights of its citizens. The country information on India does not suggest that the first named applicant would be denied state protection if required by him or that he would be prevented from initiating legal proceedings against alleged perpetrators of violence against him or his family and having those proceedings determined by an independent judiciary.[2]
[2] See Court Book at page 115
The Tribunal found that there was no real basis for the Applicant's claim to fear persecution and was not satisfied that the First Applicant had a well-founded fear of persecution for reason of his political opinion or any other Convention reason.
The Tribunal was not satisfied that the First Applicant was a person to whom Australia had protection obligations under the Refugees Convention and noted that the Second Applicant made no specific Convention claims but relied solely on her claim as a member of the First Applicant's family. The Tribunal found that she could not satisfy the alternative criterion set out in sub-section 36(2)(b) of the Migration Act.
The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicants protection visas.
Application for Judicial Review
Ground 1
The Applicants commenced proceedings for judicial review on 25th June 2007 and rely on a claim of breach of procedural fairness by the Tribunal and a claim that the Tribunal was in breach of s.424A of the Migration Act.
They have provided no particulars of either of those claims other than alleging in an affidavit of the First Applicant filed on 25th June 2007 that the Tribunal decision falls within the application of the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 4. The Applicants claim that in that decision the High Court made a new ruling about the definition of s.424A of the Migration Act.
The fact is that s.424A of the Migration Act does not apply at all. The Tribunal decision was based largely on the evidence of the First Applicant. That, of course, comes within the exception in
sub-section 424A(3)(b), being information that the Applicant gave for the purpose of the application for review.
The Tribunal accepted the substance of the Applicant's evidence in respect of the business dispute, but found that did not have a connection to the Refugees Convention. The Tribunal also relied on Independent country information to which I have referred. That information comes within the exception in sub-section 424A(3)(a) because it is information that was not specifically about the Applicant or another person and was just about a class of persons which the Applicant or other person is a member.
There is no breach of s.424A of the Migration Act because there is no application of that section to the Tribunal decision.
Ground 2
As to the claim of the breach of procedural fairness, the Applicant said that the Tribunal had wrongly dismissed his application because the Tribunal did not accept his evidence. He told the Court that there was not any procedural unfairness but he was so scared that he could not reply to the questions properly. I note the Tribunal wrote to the Applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone and invited the Applicants to attend a hearing on 18th April 2007. The First Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Gujarati language.
I note from the Response to Hearing Invitation[3] that Gujarati was the language for which the Applicants asked. There is an interpreter in the Gujarati language assisting the Court this morning.
[3] A copy appears at Court Book page 92
The Tribunal did not to my mind commit any breach of s.425 of the Migration Act. The fact is that the Tribunal did not accept the Applicant's evidence on certain parts of the First Applicant's claim and accepted other parts of the claim but found that those claims did not bring the Applicant's request for a visa within the ambit of the Refugees Convention. There is no procedural unfairness.
The First Applicant made submissions to the Court today on behalf of himself and his wife. His submissions were, as Mr Cleary of counsel correctly submitted to the Court, no more than cavilling at the Tribunal's factual findings and in fact cavilling at the Tribunal's decision on the merits. It is well established that fact-finding is a matter for the administrative decision-maker and so long as there is evidence upon which it is possible to make findings of facts, then there is no place for the Court on judicial review to interfere. I am satisfied that in this case there was evidence upon which the Tribunal was able to make the findings of fact that it did and draw the conclusions that it did.
Conclusion
The Tribunal did consider the aspects of the Applicant's claim, not just the claim about the business dispute, but the claim that matters were related to the Applicant's political opinions and the claim that the Applicants would not be able to obtain state protection in India. The Tribunal considered those claims and rejected them. Neither ground of review has been made out.
The Applicants are not legally represented in these proceedings and, in my view, it is incumbent on the Court to examine the Tribunal decision and supporting material in order to assess whether any arguable case for jurisdictional error can be made out. There is no jurisdictional error.
Because there is no jurisdictional error the Tribunal decision is a privative clause decision which is defined in s.474 of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari, setting aside the Tribunal decision, or orders in the nature of mandamus which would require the Tribunal to reconsider the matter according to law.
It follows that the application must be dismissed. In these circumstances it is appropriate for the Court to consider the question of the legal costs of the successful party.
There is an application for costs on behalf of the First Respondent Minister. The Applicants have been wholly unsuccessful in their claim and this is an appropriate matter for costs. The amount sought inclusive of counsel's fee is $4,900.00, which is within the scale allowed by the Federal Magistrates Court Rules.
I propose to order that the Applicants are to pay the First Respondent's costs fixed in the sum of $4,900.00. There are, however, circumstances relating to the Applicants' financial situation which should be taken into account and I propose to take those circumstances into account. Because of those circumstances I will allow five months to pay.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 September 2007
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