SZLKL v Minister for Immigration
[2008] FMCA 397
•10 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 397 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLKL”. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 |
| Applicant: | SZLKL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3034 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter. |
| Solicitors for the Respondents: | Ms B Anniwell (Australian Government Solicitor) |
ORDERS
The application filed on 2 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3034 of 2007
| SZLKL |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a male who was born in June 1971 and states that he is from Merta City in the Nagaur district of Rajasthan, India. He claims to have lived there for several years and previously lived in Rol. The applicant states that the highest level of education completed in India was year eight and while in Merta city, he worked as a mechanic in his brother’s workshop for five or six years before he moved to Nawa City where his wife’s family lived. His wife and two children were left in India. In Nawa City he had been a partner in a business submitting tenders for salt.
The applicant came to Australia as part of a group of players from the Rajasthan Indoor Cricket Foundation and admits that he had little involvement in cricket. The applicant claims that he is in fear for his life because of what had happened in Rol where his mother and father used to live. He said that they have been custodians of a shrine which involved the protecting of the Holy Prophet. He said that in January 2001 he had been attacked on the shrine by members of the Rashtriya Swayamsevak Sangh (RSS, a Hindu organisation) led by Miyala Ram and the police had come and opened fire killing Hindus and Muslims. The applicant claims that at this time he had been working in Merta City as a mechanic but continued to visit Rol.
The applicant claims that his father died in 2002 and the responsibility of the shrine passed from his father to his sons and the RSS wanted to harm them as the custodian of the shrine. He claims that his elder brother had been most active in this role and that his brother had been injured in 2002 and had left India to go to Italy. The applicant states that he has always feared for his life.
The applicant arrived in Australia in April 2007 and applied for a Protection (Class XA) visa on 30 April. The delegate of the Minister refused the application on 22 May and the applicant applied to the Tribunal for review of the delegate’s decision on 14 June 2007. The Tribunal affirmed the delegate’s decision on 19 August 2007 in the decision made by Giles Short (reference number 071496886) which is the decision for judicial review before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
In the original application filed on 2 October 2007, the applicant set out two grounds of review:
1. RRT made legal error.
2. RRT breached procedures required by law.
In an amended application filed in accordance with an order by this Court on 10 December 2007 the applicant lists the following as the ground of review:
1. RRT did not send me a letter after the hearing to [respond] to the adverse information [arising] at the hearing and after the hearing.
Consideration
At the first court date directions hearing, the applicant indicated to the Court that he wished to participate in the scheme that provides unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of his appeal. The applicant was allocated a panel advisor but the court file does not disclose whether he availed himself of the opportunity to participate in the scheme. The applicant made no comment in respect to the panel advisor at the final hearing.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by
21 December 2007. This order was complied with to a limited extent and the amended application is set out at [7] above. An order was also made requiring the applicant to file written submissions and a list of authorities 14 days prior to the hearing. This order was not complied with.
Tribunal hearing
From the Tribunal’s “Findings and Reasons”, I reproduce the following paragraph which I believe is important in consideration of the only ground of review that the application appears to raise being a breach of s.424A. In this respect, I believe the following passage is important:
In the present case, although the applicant said that his friend Ali had helped him to prepare the statement which he had submitted to the Tribunal, and although, as I put to him, Ali had presumably written down what the applicant had told him, there was a considerably discrepancy between what was written in the statement and what the applicant himself told me at the hearing before me. To the extent of any inconsistency I prefer what the applicant told me himself at the hearing to what was written in the statement which he submitted to the Tribunal because I consider that the applicant’s own evidence is more likely to reflect the truth. The applicant said that he had been in fear for his life in India as a result of the events which had taken place at the shrine in Rol where his father and grandfather before him had been custodians of the shrine. The applicant said that in January 2001 there had been an attack on the shrine by members of the RSS led by Miyala Ram and that the police had come and had opened fire, killing Hindus and Muslims. He said that in September 2001 his cousin [blank] had been killed and that in 2002 his brother [blank] had been injured because people had thrown stones at him. He said that it had been after this incident that his brother had gone to Italy. He said that he was not sure whether his brother had left for Italy before or after their father had died, also in 2002. (CB 87-88)
The decision record then continues to record a number of details given by the applicant concerning his activities, employment, home movements, involvement in business selling salt and the incidences that occurred in Rajasthan which led him to be fearful for his life.
After considering these issues the Tribunal came to the following conclusions:
As I put to the applicant, having regard to the fact that he was able to continue living and working as a mechanic in Merta City until 2004 or 2005 and that he then moved to Nawa City where his wife’s family lived and where he worked in a business contracting to supply salt, I do not accept that he was in fear for his life in India. I do not accept that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be threatened, attacked, injured, killed or otherwise persecuted by Hindus or specifically by members of the RSS because of his religion as a Muslim or specifically because of his hereditary role as a custodian of the shrine at Rol. (CB 88.8)
The amended application does not contain proper particulars as to what the applicant claims to be, Although “certain adverse information”, which he contends was relied upon by the Tribunal and was ought to have been disclosed to the applicant in writing pursuant to s.424A, provides an inference that the applicant is claiming that the Tribunal breached this provision of the Act. Section 424A(1) of the Act requires the Tribunal to provide an applicant with written particulars of information that “would be the reason, or part of the reason” for affirming the decision under review. Section 424A does not apply to information that the applicant gave to the Tribunal for the purposes of the application for review (s.424A(3))
In the passage extracted above [10] the Tribunal’s findings were based upon information provided by the applicant at the hearing alone which is evidence that falls within the exception to s.424A(1). I am satisfied that a fair reading of the Tribunal’s decision and in particular the “Findings and Reasons”, clearly indicate that the operation of the provisions of s.424A were not enlivened by the way that the Tribunal hearing was conducted or the way it reached its decision. In the circumstances, this ground of review cannot be sustained.
In the original application filed in these proceedings, the applicant raised the issue of a breach of ‘procedural fairness’ by the Tribunal. There is no evidence or particulars provided for this ground of review and the only avenue open to this Court is to consider the contents of the Court Book and in particular the Tribunal’s decision to assess whether this claim could be made out. I am satisfied after adopting that process that there is nothing to support an argument that the Tribunal had breached its requirement for procedural fairness. This hearing was subject to the provisions of s.422B and I am satisfied that the provisions within Division 4 of Part 7 of the Act have been complied with. If the suggestion is that the Tribunal breached the common law provisions of procedural fairness, then that is not apparent or the face of the decision or the material contained in the Court Book. In the circumstances, I am satisfied that this ground of review cannot be sustained.
When the applicant was invited to make oral submissions or respond to the written submissions prepared and provided by Ms Anniwell the applicant declined the invitation. Despite being provided with the opportunity to provide written submissions, affidavit evidence and oral submissions, the applicant has declined to respond. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish his case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 per Kirby J at [596].
Conclusion
The applicant in these proceedings is a self-represented litigant appearing with the assistance of a Hindi interpreter. It was apparent that the applicant was experiencing some difficulty in attempting to present his case as he was unable to articulate his claim. Furthermore, he provided nothing in writing to support the action that he was attempting to put before the Court. I have independently reviewed the contents of the Court Book and the decision and it is not apparent that any jurisdictional error is contained in the reasoning of the Tribunal and, consequently, the application should be dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
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