SZLJW & Anor v Minister for Immigration & Anor (No.2) - [2008] FMCA 575

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJW & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2008] FMCA 575

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 – where applicant did not attend Tribunal hearing – no reviewable error.

Migration Act 1958 (Cth), ss.36(2), 91R(1)(b), 91R(1)(c), 424A, 425, 425A, 426A, 474
Federal Magistrates Court Rules 2001 r.13.03A

SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306

First Applicant:

SZLJW

Second Applicant:

SZLJX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2991 of 2007

Judgment of:

Scarlett FM

Hearing date:

17 April 2008

Date of Last Submission:

17 April 2008

Delivered at:

Sydney

Delivered on:

17 April 2008

REPRESENTATION

Counsel for the Applicant:

Nil

The First Applicant:

Appeared in person

Appearance for the Respondents:

Ms Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Order 1 made on 3 March 2008 is set aside.
The application for review of a decision of the Refugee Review Tribunal filed on 27 September 2007 is reinstated and listed for final hearing today.
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $600.00.
I allow two (2) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2991 of 2007

SZLJW

First Applicant

SZLJX

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 originally applied to this Court for review of a decision of the Refugee Review Tribunal which was handed down on 13^th September 2007 refusing them protection visas. They filed their application at this Court on 27^th September 2007. The application was listed for final hearing originally on

25^th March 2008
that date was changed to 25^th February 2008. On that date a different hearing date was set for 28^th February.
The Court was unable to deal with the matter on that day and the matter was listed for final hearing on 3^rd March. The applicants had not been able to attend Court on 28^th February due to transport problems. They did not attend Court on 3^rd March and the application was dismissed with costs for non-attendance under the provisions of r.13.03A of the Federal Magistrates Court Rules 2001.
The applicants then applied to set aside that decision and the first applicant filed an affidavit in support. Referring to the hearing on

28^th February he deposed that he lived in the country area of New South Wales and very few bus services to Sydney are available.

He could not get a bus ticket to reach Sydney at the given time.

He said he informed the Court by fax that he was unable to attend the hearing and asked for an adjournment.
The application was adjourned until 3^rd March 2008. He claimed that he received the letter from the Court relating to the adjournment on

3^rd March itself and was unable to get either an airline ticket or a bus ticket to reach the Court that afternoon. He said that he had been ready to attend the hearing and was willing to attend. He said that he was not in a position to inform the Court and the respondents of the situation because he did not speak or understand English, however he believed that there was a jurisdictional error in the Tribunal decision and claimed that the matter should be reinstated for hearing.
The first applicant has attended Court today and has informed the Court that he has authority to speak on behalf of the second applicant who is his wife. I have ascertained that the first applicant and the solicitor for the respondent minister are in a position to deal with the substantive application for review of the decision of the Refugee Review Tribunal today. As I am concerned that the applicants may have had some difficulty getting to the Court and I am mindful of the fact that for different reasons hearing dates have had to be changed, I have decided that I will set aside order 1 made on 3^rd March, dismissing the application for non attendance, and I will reinstate the application for hearing before me on a final basis today.
The applicants arrived in Australia on 17^th March 2007. They applied for protection (Class XA) visas on 24^th April 2007. The first applicant who is the husband of the second applicant seeks protection because he claims to have a well-founded fear of persecution in India because of his political beliefs. The second applicant who is the wife of the first applicant is a part D applicant. She claims no separate fear of persecution but makes her claim for refugee status as a member of the first applicant's family unit.
The first applicant provided a statement with his protection visa application in which he set out that he had been a member of the Bhartiya Janata Party, known as the BJP in India, and he claimed to have suffered attacks from supporters of another political party including a claim to have been attacked with acid.
A delegate of the Minister for Immigration & Citizenship considered the applicants claims for protection but whilst accepting that the first applicant may have been an active supporter of the BJP in Gujarat found it difficult to accept that he was subjected to physical harassment by members of the rival political party, the Congress Party.

The delegate said that the first applicant's description of the events involving the harassment was vague and lacking in detail and went on to find:
The considerable lack of detail in the applicant's statement makes the voracity of his whole claim doubtful.[1]
Accordingly, the delegate of the Minister refused the applications for protection visas on 19^th May 2007.
[1] See Court Book page 41
On 8^th June 2007, the applicants applied to the Refugee Review Tribunal for a review of the delegate's decision. They did not provide any additional documentary evidence with their application. They gave a residential address in the New South Wales country town of Griffith and provided a post office box number at the Griffith post office as their address for correspondence.
The Refugee Review Tribunal wrote to the first applicant at that address on 19^th July 2007. That letter invited the applicants to attend a hearing of the Tribunal on 17^th August 2007. Neither applicant attended the hearing on 17^th August. The Tribunal then proceeded to deal with the application under the provisions of s.425A of the Migration Act and proceeded to make its decision on review without taking any further action to enable the applicants to appear before it. The Tribunal noted that the applicants had not attended the hearing nor had they contacted the Tribunal to explain their failure to attend.

The Tribunal checked that the hearing invitation letter had been sent to the correct address and it was satisfied that it had been.
The Tribunal signed its decision on 27^th August 2007, 10 days after the scheduled hearing date. The Tribunal handed its decision down on
13^th September 2007. A copy of the Tribunal decision record can be found at pages 57 to 64 of the Court Book. The decision, not surprisingly, is relatively brief. The Tribunal set out the applicants' claims and evidence taken from the application for a protection visa. The Tribunal's findings and reasons are found at pages 61 to 64 of the Court Book. The Tribunal accepted that the applicants were nationals of India but in dealing with the claims by the first applicant made this comment:
The Tribunal has significant problems with the applicants' claims. His claims are expressed in vague general terms and he does not provide essential details including dates and locations.[2]
[2] See Court Book page 61
The Tribunal went on to find:
Given the generality of the applicant's claims, without more information it is difficult to know what significance can be attached to his assertions. He has not provided any further information to the Tribunal which would enable it to be satisfied that he has suffered persecution in the past, that his fear of facing persecution in the future is owing to a Convention ground or that his fear is well founded. Overall, in view of the insufficient information and lack of detail contained in the applicant's claims the Tribunal is unable to be satisfied that he has been persecuted for a Convention reason in the past or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.[3]
[3] See Court Book page 62
The Tribunal was not satisfied that the first applicant was a person to whom Australia has protection obligations under the Refugees Convention and did not satisfy the criterion set out in s.36(2) for a protection visa. The Tribunal noted that no specific Convention claims had been made on behalf of the second applicant and found:
As the first named applicant cannot be granted a protection visa it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.[4]
The Tribunal affirmed the decision not to grant the applicants protection (Class XA) visas.
[4] See Court Book page 63
The applicants then commenced proceedings for judicial review in this Court on 27^th September 2007. They filed an amended application on 18^th December 2007. They have not filed any written submissions.

In their amended application they seek the following orders.
a)A declaration that the decision of the Refugee Review Tribunal is null and void.
b)A writ of mandamus requiring the Tribunal to re-determine the application for review according to law.
c)A writ of certiorari quashing the decision of the Refugee Review Tribunal.
d)A writ of prohibition directed against the first respondent minister preventing him from acting upon or giving effect to or enforcing the Tribunal decision.
The applicants in their amended application rely on three grounds. Those grounds are:
a)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 claims.
b)The applicants claim that the Tribunal failed to comply with s.424A(1) of the Migration Act in using certain information without providing the applicants an opportunity to respond; and
c)The Tribunal has importantly with the aspect of the applicants' claim relating to state tolerance and complicity of the applicants' religion and membership of a particular political or social group and as a result of 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 conclude 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 law and procedures.
I asked the applicant if he would care to explain some aspects of the ground in his application and he told the Court that he neither spoke nor wrote English and did not know what was contained in the application. Nevertheless, he relied upon the contents of it.

When asked to make any further comments he indicated that he had nothing to add.
Ms Johnson who appears for the Minister has prepared a comprehensive written outline of submissions and also addressed the Court on the fact that the Tribunal's written invitation to the applicants to attend the hearing under the provisions of s.425 of the Migration Act have been sent on 19^th July 2007 and invited the applicants to attend a hearing on 17^th August.
The invitation, she submitted, allowed more than the prescribed period of notice. She also submitted that no response had been received to the hearing invitation and noted that the Tribunal decision had not been handed down until 13^th September 2007 which was almost one month after the date of the scheduled hearing. Consequently she submitted that the Tribunal had correctly applied the provisions of s.426A of the Migration Act in exercising its discretion to proceed to a decision without giving the applicants a further opportunity to attend.
The applicant told the court in reply that he could not get anyone who could assist him with English so he was not able to inform the Tribunal that he was not able to attend the Tribunal hearing. He claimed again that this was due to difficulty in obtaining transport to Sydney.
The Tribunal decision was based on the inadequacy of information before the Tribunal. This is so often the case in matters where applicants for one reason or another do not attend the hearing of the Refugee Review Tribunal. The Tribunal's letter to the applicants of

19^th July 2007
referred to an earlier letter sent on 25^th June which told the applicants that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. That was why the Tribunal invited the applicants to appear at a hearing to give oral arguments and present arguments.
The applicant neither attended the hearing nor provided any further documentary evidence. Thus, the Tribunal was in no better position at the time of the hearing than it had been when it issued the invitation to the applicants to attend. This situation has been dealt with in a number of cases before this Court and the Federal Court including SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[5] and SZDXC & Minister for Immigration & Multicultural & Indigenous Affairs[6].
[5] [2005] FCA 1811
[6] [2005] FCA 1306
The applicants did not contact the Tribunal either before or after the hearing and did not provide the Tribunal with any additional information. It is hardly surprising in the circumstances that the Tribunal was not satisfied that the applicants met the requirements for a protection visa.
The amended application filed on 18^th December 2007 sets out grounds which have been described by the solicitor for the respondent Minister as:
Formulaic and a familiar precedent to the Court.
Ms Johnson submitted that the grounds of the amended application did not appear to relate to the Tribunal decision. In my view, that submission carries a lot of weight. The first ground made two claims. It alleged that the Tribunal wrongly applied the law in relation to ss.91R(1)(b) and 91R(1)(c) of the Migration Act. The Tribunal did not make any findings as to whether the harm that the applicant claimed to fear was sufficiently serious to amount to persecution or involved systematic or discriminatory conduct. It was not necessary for the Tribunal to make that finding because it was not satisfied on the limited information before it about the voracity of the applicants' claims.

In fact, this is a similar finding made by the delegate and the delegate's decision. The first ground also alleges a breach of s.424A of the Migration Act as does the second ground.
The Tribunal decision does not refer to any information that was the reason or part of the reason for affirming the decision. The reason that the Tribunal affirmed the delegate's decision was due to the insufficiency of information before the Tribunal. The Tribunal's conclusions or thought processes are not subject to the requirements of s.424A of the Migration Act. There is no breach of s.424A and this ground fails.
The third ground which was somewhat confusing but mainly complained about an incorrect application of the test for relocation is entirely misconceived. The Tribunal made no finding about relocation whatsoever. The third ground seems to relate to some other case because it also referred to claims by the applicant for protection on the basis of religion and membership of a particular social group. No such claims have been made by the applicant. The Tribunal made no finding about relocation. The third ground is entirely misconceived.
The applicants have not shown any jurisdictional error on the part of the Refugee Review Tribunal. My reading of the decision independently of the applicants; submissions or the respondent's submissions does not show any jurisdictional error. It follows that the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act and as such it is final and conclusive and it is not subject to remedies in the nature of declaration, certiorari, mandamus or prohibition. It follows that the application will be dismissed with costs.
There is an application for costs in the sum of $600.00. The applicant says he has no money because he is not currently working. I am satisfied a costs order in the sum of $600.00 is appropriate but I will allow two months to pay.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 5 May 2008