SZLJT v Minister for Immigration - [2008] FMCA 265

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJT & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 265

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicants are a citizens of India – first applicant claiming fear of persecution for reasons of his political opinion – second applicant claims only on the basis of her membership of her husband's family unit – claim of fear of persecution on basis of political opinion – where applicants did not attend Tribunal hearing – where applicants claim they did not receive the letter of invitation until after the hearing – no reviewable error.

Migration Act 1958 (Cth), ss.91R, 424, 424A, 425, 425A, 426A, 441, 474

NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 152 FCR 592

First Applicant:

SZLJT

Second Applicant:

SZLJU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2990 of 2007

Judgment of:

Scarlett FM

Hearing date:

7 February 2008

Date of Last Submission:

7 February 2008

Delivered at:

Sydney

Delivered on:

7 February 2008

REPRESENTATION

Counsel for the Applicants:

Nil

Appearance for the Applicants:

First applicant appeared in person

Counsel for the Respondents:

Mr Potts

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $3,500.00.
I will allow four months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2990 of 2007

SZLJT

Applicant

SZLJU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicants are citizens of India. They are a husband and wife. Only the first applicant, the husband, has attended Court today; but he addressed the Court on behalf of his wife and himself. They asked the Court to review a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant them protection (Class XA) visas.
The decision was signed on 13^th August and handed down on
4^th September 2007. The applicants had applied for protection visas based on the claims of the husband, the first applicant; and his wife, the second applicant, applied on the basis of being a member of his family unit.
The application for a protection visa was based on the first applicant's claims to fear persecution in India on the basis that he was a member of the Vishwa Hindu Parishad, known as the VHP. He claimed that he had come under adverse notice from members of the Students' Islamic Movement of India - or SIMI. He claimed that they had threatened him and had attacked him and his wife, causing injury. His complaints to the police had met with no assistance, and indeed, had led to a false complaint against him.
The applicants had arrived in Australia in April 2007 and applied for protection (Class XA) visas on 7^th May 2007. When their applications were refused they sought a review of that decision from the Refugee Review Tribunal. For circumstances that I will briefly explain, there were actually two applications for review lodged. In effect, it appears that the application was lodged twice. The application was lodged by fax on 12^th June 2007. The original of that document was received by post at the Registry of the Tribunal on 14^th June. A copy of the faxed application appears at pages 47 through to 49 of the Court Book; and a copy of the original appears at pages 51 through to 54 of the Court Book.
The faxed copy was incomplete. A page was left out. It was page 5 of the application. The significance of that is that the only address for the applicants that the Tribunal originally had was their residential address in a country town in New South Wales that appeared on page 4.

The fact is, however, that the missing page 5 contained a post office box address in that same country town which the applicants had nominated as their address for all correspondence. The incomplete nature of the original form had come to the attention of the Tribunal and a memorandum relating to the incomplete application and the missing page 5 appears at page 55 of the Court Book.
The Tribunal wrote to the applicants inviting them to attend a hearing which was to take place on 27^th July 2007. The invitation was sent twice. The first time it was sent on 21^st June to the applicant's residential address. From the copy of the letter that appears at pages 56 and 57 of the Court Book, it is clear that there was attached to the Tribunal copy a registered post tear off tab bearing a registered post number.
The Tribunal, however, wrote again to the first applicant on 28^th June, again by registered post, this time addressed to the post office box number in the country town. The letters were identical in form, informing the applicants that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to attend a hearing at a Griffith Police Station on 20^th July 2007. The applicants did not attend. The Tribunal decision record shows that in the absence of the applicants and without any explanation for their failure to attend. The Tribunal exercised its powers under s.426A of the Migration Act to make a decision on the basis of the material before it without giving the applicants any further opportunity to attend before the Tribunal.
The decision was signed on 13^th August and handed down on
4^th September 2007. A copy of the decision record is found at pages 66 through to 73 of the Court Book. The Tribunal noted the claims by the first applicant and referred to independent country information from the United States State Department International Religious Freedom Report 2005, where there was a reference to the action by the Indian government in officially banning the Students' Islamic Movement of India.
The Tribunal's findings and reasons are set out on pages 71 to 73 of the Court Book. The Tribunal said:
In the present case the applicant has provided only the broad outline of his claims, which leaves much to be explained both with regard to his own claimed involvement in the VHP and with regard to the occasions on which he claims he and his wife were attacked by the activists of SIMI.[1]
[1] See Court Book page 71.
The Tribunal went on to find:
I am unable to be satisfied on the evidence before me that the applicant has a well-founded fear of being persecuted for a convention reason if he returns to India.[2]
[2] See Court Book page 72.
The applicants commenced proceedings for judicial review in this Court by filing an application on 27^th September 2007. An amended application was filed on 10^th December 2007 but apparently not served on the lawyers for the respondent Minister. I adjourned the proceedings briefly and arranged for a photocopy of the amended application to be handed to counsel for the first respondent, Mr Potts, and allowed time for him to obtain instructions on that document. I was informed that the respondents would be in a position to meet the amended application without seeking an adjournment, so I proceeded with the hearing.
The amended application sets out three grounds, with somewhat uncertain numbering. The first ground claimed that the Tribunal had 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 claims. The ground refers to s.91R(1)(b)(c) of the Migration Act.
The second and third grounds claim that certain information was used by the Tribunal without providing an opportunity to respond and was not given by the applicant for the purpose of review, and was not disclosed by the Tribunal and that therefore there was a breach of s.424A(1) of the Migration Act. There was also a further ground claiming that the Tribunal had concluded that the applicant could relocate in other parts of India, and the Tribunal did not apply the correct test of relocation principles.
The applicant told the Court that neither he nor his wife had attended the hearing because they did not receive the s.424A invitation letter until after the hearing had taken place on 30^th July. The applicant explained that the post office box which he had given as his address for correspondence was in fact the post office box of a friend, and that the friend had left and it took a lengthy period of time for him to obtain a copy of the letter. I note, however, that the applicant's home address that appears on his amended application is the same as the residential address on the application for review by the Refugee Review Tribunal.
Mr Potts of counsel for the Minister submitted that it was unlikely that neither of the letters sent, to the home address on 21^st June by registered mail, or the post office box number on 28^th June, would have been so delayed that they were not received until 30^th July: a period of some five weeks.
The applicant, when asked about the grounds in his application, sought more time to obtain further documentary evidence to present to the Refugee Review Tribunal, and when asked about the relocation claim said that he could not really stay in India anymore.
The Tribunal, to my mind, has complied with the requirements of s.425 of the Migration Act by inviting the applicants to attend the hearing. The letters were sent by registered post, admittedly to two different addresses, both of which the applicant had given. In each case the letter was sent more than the required period of time prior to the hearing, and therefore complies with ss.425A, 426(1) and 441A of the Act. I am of a view that the Tribunal was entitled to proceed under s.426A of the Migration Act and was, as counsel for the Minister points out, under no obligation to make further inquiries as to the applicant's failure to attend the hearing. I am referred to the decision of NBBL v Minister for Immigration & Multicultural & Indigenous Affairs[3].
[3] [2006] 152 FCR 592
As to the grounds themselves, the first ground complains of a wrongful application of the law to the facts in relation to the seriousness of harm that constitutes persecution, and refers the Court to s.91R(1)(b)(c). The Tribunal did not find any facts. The Tribunal dismissed the application on the basis that the information provided was insufficient. Section 91R does not apply.
As to the claim of a breach of s.424A of the Migration Act, the Tribunal did not rely on adverse information that was the reason or a part of the reason for affirming the decision under review. True it is that the Tribunal referred to the applicant's claim, but did so only in the context of setting out its lack of satisfaction at the amount of material provided. The reference to the background information about the Students' Islamic Movement of India comes, in any event, under the exception to the operation of s.424A(1) as provided by s.424A(3) of the Act. There is no breach of s.424A.
The complaint that the Tribunal misapplied the law in respect of relocation is entirely misconceived, because the Tribunal made no relocation finding whatsoever. This ground must fail. It is hard to see why it was included.
The other point, of course, is that the applicants were invited to a hearing to take place on 27^th July. The first applicant told the Court that he did not receive either invitation letter until 30^th July. The Tribunal did not sign its decision until 13^th August, or hand it down until 4^th September 2007. If the applicants had missed out on their hearing by some problem with the mail, it was open to them to contact the Tribunal to say that they had missed the hearing, and ask for the hearing to be rescheduled. There is no evidence or even any claim that they contacted the Tribunal at any stage to explain the error.
The Tribunal rejected the applicant's claim because of the insufficiency of the information provided by the applicants. The applicants were, or should have been, aware of that, because the invitation to appear before the Tribunal made it quite clear that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. In other words, the very situation which the Tribunal warned the applicants about was the one that took place.
No jurisdictional error has been indicated. The documentation was sent in time, and indeed, the affidavit of Alyssa Marie Crittenden, sworn on 31^st January and filed on 4^th February 2008, annexes documentation confirming that the second letter was in fact posted on 28^th June, the date that it was dated.
In the absence of jurisdictional error, it is clear that the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. It is therefore not subject to the writs of certiorari, mandamus or prohibition, which the applicants seek. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicants have been unsuccessful in their claim and this is an appropriate matter for an order for costs. The amount sought is $3,500.00, which is well within the scale provided by the Federal Magistrates' Court Rules, and I propose to make that order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 22 February 2008