SZLLA v Minister for Immigration - [2008] FMCA 926

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 926

MIGRATION – Review of decision of RRT – no convention nexus.

Migration Act 1958, s.424A

Applicants:

SZLLA & SZLLB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3081 of 2007

Judgment of:

Raphael FM

Hearing date:

25 June 2008

Date of Last Submission:

25 June 2008

Delivered at:

Sydney

Delivered on:

25 June 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00, such costs to be paid by both Applicants.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3081 of 2007

SZLLA & SZLLB

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The substantive applicant in this matter and his wife are citizens of India. They arrived in Australia on 22 March 2007 and on 27 April 2007 they applied to the Department of Immigration & Citizenship for protection (Class XA) visas. On 19 May 2007 a delegate of the Minister refused to grant them protection visas. On 12 June 2007 the applicants applied for a review of the delegate's decision from the Refugee Review Tribunal. On 21 June 2007 the Tribunal wrote to the applicants advising them that it could not make a favourable decision upon the information provided and invited them to a hearing on 7 August. The male applicant appeared before the Tribunal and advised that his wife was unable to attend because she was ill. The Tribunal proceeded with the hearing as it was only the male applicant who had any substantive claim. On 22 August 2007 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 13 September 2007.
The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were that he was in grave danger from creditors should he return to India. He claimed that he had taken over the debts of his deceased father and later debts incurred on the marriage of his two sisters.
It appears that, notwithstanding these problems, he managed to attend a technical college and obtained a qualification as a fitter. He said he was beaten up by an unknown assailant prior to 2001 but did not report this incident to the police because his assailant told him that he would be killed if he did so. He claimed that the reason for the beating up was the continuing debt.
After 2002 the applicant opened his own business which, he said, became successful and allowed him to repay the entire family's debt. He then married and opened another business which did not do very well. The persons who had lent him money for the opening of that business began to threaten him and:
“The applicant claims that they called every day and abused both himself and his wife. He claims that they threatened the lives of his family. He claims that some friends advised him to apply for a visa to come to Australia. However he decided to move instead but the debt collectors found out and tried to run him over on the road. He claims that after this incident he and his wife fled to Australia. He claims he called his mother after he arrived and she informed him that the debt collectors had taken his shop and warned his mother that they will kill him if he returns to India.” [CB 118]
The Tribunal took up with the applicant the difficulty it had with making a finding that the story given by the applicant had some nexus to the Refugee Convention. This was not a matter that was unknown to the applicant because it was the reason for the delegate's decision [CB 77]. The Tribunal asked the applicant whether he wished to make any other claims but apart from requesting access to Medicare, he did not do so.
The Tribunal in its findings and reasons concluded that [CB 119]:
“Nothing the applicant has said in his claims or at hearing indicates that the harm he faces on return to India arises from any of the five convention reasons. The applicant does not fear harm as a consequence of his race, religion, nationality, membership of a particular social group or political opinion, but because he is unable to repay a debt which appears to have been entered into knowingly and for commercial or personal reasons. The applicant did not report suspicions regarding his father's death to the police nor did he claim to have reported harassment or threats to the police so there is no evidence that, had he done so, the police or relevant authorities would not have provided him with the protection to which he was entitled.”
The Tribunal for those reasons determined that the applicant was not a person to whom Australia owed protection obligations.
On 4 October 2007 the applicant filed an application for review with this court. He states firstly in his grounds of application that the Tribunal's decision was in breach of s.424A(1) of the Migration Act1958 (the “Act”) particularising it by saying "The Tribunal did not disclose the information in accordance with 424A(1)."
The applicant has provided no assistance to the court in determining what exactly the information was. It seems to me that any information that the Tribunal used for the purposes of coming to its decision was information provided by the applicant himself about his situation and about the attacks that have been made upon him. Such information is exempted from the provisions of s.424A.
The second claim raised by the applicant is that the Tribunal made an error of law and lacked procedural fairness. Once again I am not assisted by any particulars. It seems to me that the only possible error of law the Tribunal may have made was in its finding that the applicant's complaints did not constitute convention related harm but that is not a view that I would share. If the applicant returns to India he may well suffer harm at the hands of his creditors but not for any convention related reason.
I am not clear why the applicant said that the actions of the Tribunal lacked procedural fairness. He was given an opportunity to attend and give evidence, which he took. The applicant was, at all times, aware of the problems associated with his claims from the decision of the delegate. There is no indication that he was not given every opportunity to assist the Tribunal and provide further evidence.
In this regard at the hearing today the applicant handed me a bundle of documents which he said had been given to the Tribunal. The bundle included a fax transmission verification report which indicates that it was sent on 29 January 2008. The applicant told me that was when he sent the documents. This is long after the Tribunal decision was handed down and constitutes new evidence which the Tribunal did not have. It cannot be taken into account by me in deciding whether or not the Tribunal made an error of law in the way it came to its decision. For this reason I returned these documents to the applicant.
The final ground of application was:
“The tribunal made denial of natural justice. Because the tribunal was wrong in concluding that the applicant's claims were not convention related, such as significant economic hardship.”
If the Tribunal had made an error about the convention nexus of the applicant's claims it would not be a denial of natural justice but an error of law. In this case there is no such error because the suffering of significant economic hardship, whilst a possible criteria of persecution, is not in itself a reason for granting refugee status. The significant economic hardship is required to be associated with one of the convention grounds.
Before me today the applicant told me that he had told the Tribunal that his father had expired and he thought he had been murdered but he had no proof and that was why he did not report it to the police. The applicant was very young when the father died and it is understandable that he did not know very much about the circumstances. The evidence he gave to the Tribunal and contained in his letter of claim, [CB 32], was that his father had lost a lot of money gambling, had become alcohol dependant and collapsed and died after drinking alcohol one day. He had borrowed money. There is nothing in this information which would indicate a convention nexus to the father's death.
The applicant then told me that if he returned to India and relocated the debt collectors would try and kill him. They had already attacked him twice. Whilst I have no reason to disbelieve the applicant this is not a submission relating to the Tribunal's jurisdiction and therefore not one with which I can deal at a hearing.
The applicant has not satisfied me that the Tribunal made an error of law in the way in which it came to its decision. It has not fallen into jurisdictional error and thus the application must be dismissed. I order the Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00, such costs to be paid by both Applicants.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: