SZLHR & Anor v Minister for Immigration
[2008] FMCA 534
•12 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 534 |
| 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 “SZLHR” and “SZLHS”. |
| Migration Act 1958 (Cth), ss.91X, 426A |
| SZCIA v Minister for Immigration & Citizenship [2006] FCA 238 SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195 SZIDH v Minister for Immigration & Citizenship [2007] FCA 369 SZKLZ v Minister for Immigration & Citizenship [2008] FCA 262 SZKSC v Minister for Immigration & Citizenship [2008] FCR 210 |
| First Applicant: | SZLHR |
| Second Applicant: | SZLHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2819 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2008 |
REPRESENTATION
| Applicants: | The applicants appeared in person with the assistance of a Gujarati interpreter |
| Solicitors for the Respondents: | Ms A Crittenden of Clayton Utz |
ORDERS
The application filed on 13 September 2007 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2819 of 2007
| SZLHR |
First Applicant
And
| SZLHS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The first applicant is a citizen of India and was born in 1976 and states that he is of the Gujarati ethnic group. The second applicant, his wife, is also a citizen of India born in 1978 and is a member of the Hindu Pater ethnic group. Both applicants nominate their religion as Hindu. The first applicant states that prior to leaving India, he was a business man between January 1996 and February 2007 and was a self-employed partner. The second applicant states that she is a housewife.
In a statement attached to his protection visa application, the first applicant claims that he was an active member of the Bhartiya Janta Party (BJP). He claims that he developed an interest in politics as his father worked with the Vishwa Hindu Parishad (VHP) and the Rashtriya Seva Sangh (RSS) parties. After completing secondary school, he married and started the business partnership. He states that he was active in local politics and handled the local area BJP during an election. This resulted in friction between his office, the Congress Party and the nearby Muslim community.
Although there were many incidents during the election campaign, police presence prevented any major conflict. However, after the elections when the applicant returned to his normal life he was attacked and hospitalised one night. The attackers could not be identified. As a result of this continuing violence he was forced to relocate to his uncle’s house and eventually to New Delhi. The applicants applied for visitor’s visas to Australia and, on arrival, filed a Protection visa (Class XA) application on the basis that it was not safe in India and they feared returning to the country.
No specific Convention claims were made by or on behalf of the second applicant. The fate of the second applicant’s application, therefore, depends on the outcome of the first applicant’s claims.
The applicants arrived in Australia on 1 April 2007 and applied to the Department of Immigration for a protection visa on 7 May 2007. A delegate of the Minister refused to grant the visa on 19 May 2007 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 31 July 2007 and it is that decision of N Douglas, reference number 071500690, that is the subject of judicial review in this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The application for review filed on 13 September 2007 contains three grounds of review:
Ground one
1. That the Tribunal made denial of natural justice. Because it failed to provide an opportunity to appear hearing before the Tribunal.
Ground two
2. That the Tribunal made error of law and lacked procedural fairness and therefore committed jurisdictional error.
Ground three
3. That the Tribunal’s decision was in breach of section 424A(1) of the Migration Act.
Consideration
The application for review to the Tribunal was filed without any attachments or supporting evidence. The application lists a residential address in Griffith, New South Wales and the address for receipt of correspondence at a post office box in Griffith. The applicants did not list anyone as their agent, nor did they nominate any other person to be the authorised recipient of correspondence. The Tribunal acknowledged receipt of the application by letter dated 15 June 2007, which was forwarded by registered post to the post office box.
On 28 June 2007, the Tribunal wrote to the applicants in a letter addressed to the post office box in Griffith. It said that it had considered the material before it but it was unable to make a favourable decision on this information alone. An invitation was extended to the applicants to appear before the Tribunal on 31 July 2007 at 9.00am. The letter contained information on the steps to be taken should the applicants be unavailable on that date including how to arrange an alternative hearing date. The letter also contained a leaflet entitled “What is a hearing?” and a “Response to hearing invitation” which it requested the applicants return by 16 July 2007.
The response to the hearing invitation was not received by the Tribunal and there was no appearance by the applicants at the hearing held on 31 July 2007. The applicants did not contact the Tribunal at all.
Consequently, the Tribunal proceeded with its consideration of the application pursuant to s.426A of the Migration Act 1958 (Cth). The Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
The Tribunal made the following observations in its “Findings and Reasons”:
37. The first applicant has made a number of unsubstantiated claims in relation to his membership and active involvement in the BJP; his father’s involvement in the VHP and RSS; his involvement as a member of the BJP in the Gujarat election campaign which took place after the Godhra incident; and that he was part of a post election procession which was attacked by opposition members who throw stones. The first applicant also claimed that he was attacked at night when returning home from his work and then, six months later, he and the second applicant were attacked when returning to their home at night after attending a birthday party. He also claimed that the police could not help him as he does not know the identity of the attackers. The Tribunal is unable to establish the facts of the matter. The applicant was put on notice, in writing, by the Tribunal that it was unable to make a decision in his favour on the basis of the material before it. The applicant did not send any further material, nor did he take the opportunity offered to him of attending a hearing and presenting his claims orally.
38. The Tribunal is not satisfied, on the evidence before it, that the first applicant has a well-founded fear of persecution within the meaning of the Convention.
The circumstances of this case are similar to those in SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195. In that case, the applicant did not attend the Tribunal hearing and Allsop J stated:
[8] The relevant reasons of the Tribunal were as follows:
The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case. Questions which remain unanswered include precisely when and how [the applicant’s] alleged homosexuality became known to others, what he means when he says that he and his boyfriend were “arbitrated” by the local council and mosque, how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now…
[29] On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424 A. Its operation is to be understood conformably with that purpose. Whilst in some cases an “unbundling” is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain.
The Tribunal, having read all the material and evaluated its contents and weight, was unable to be satisfied that the applicant had a well‑founded fear of persecution because of the perceived inaccuracies in the information. The reason for the Tribunal decision was no more than that. It was the applicant’s lack of further assistance and explanation that was the reason for the decision.
In SZCIA v Minister for Immigration & Citizenship [2006] FCA 238, which is another matter where the applicant did not attend the Tribunal hearing, the Federal Court emphasised the need to make an evaluation of the Tribunal’s reasons. As in SZEZI, this was not the reason or part of the reason for the Tribunal decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and intended to discuss with the applicant had he chosen to attend the hearing. SZEZI and SZCIA apply to the present case. This Tribunal did not make positive findings of facts about the position of the applicant but, rather, rejected his claims because of its inability to be satisfied on the lack of information before it that Australia owed protection obligations to him under the Refugees Conventions. I am satisfied that the three grounds of review raised in the application are adequately addressed by applying SZEZI and SZCIA. I also believe it is not necessary to further consider the grounds of review as they bear no relevance to the issues addressed in the Tribunal decision.
The approach adopted by Allsop J has been recently followed by the Federal Court in SZIDH v Minister for Immigration & Citizenship [2007] FCA 369 by Jessup J, in SZKLZ v Minister for Immigration & Citizenship [2008] FCA 262 by Edmonds J and in SZKSC v Minister for Immigration & Citizenship [2008] FCR 210 by Flick J. In the circumstances, I believe the appropriate course is to dismiss the application and award costs to the first respondent.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2008
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