SZLMQ & Anor v Minister for Immigration
[2008] FMCA 698
•15 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 698 |
| MIGRATION – Review of 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 “SZLMQ” and “SZLMR”. |
| Migration Act 1958 (Cth), ss.36, 65, 91X, 422B, 425, 441A Migration Regulations 1994 (Cth), reg. 4.35D |
| SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCR 1195 |
| First Applicant: | SZLMQ |
| Second Applicant: | SZLMR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3209 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Gujarati interpreter. |
| Solicitors for the Respondents: | Ms N Johnson of Sparke Helmore |
ORDERS
The application filed on 15 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3209 of 2007
| SZLMQ |
First Applicant
| SZLMR |
Second Applicant
And
| MINISTER FOR IMMIGRATION &CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Settled from extempore reasons)
The second applicant did not make a claim for a Protection (Class XA) visa and therefore the first applicant shall be referred to as the applicant. The applicant was born on 3 December 1972 in Mansa, India and he is ethnic Hindu. He arrived in Australia on 28 March 2008 with his spouse as holders of Visitor visas granted on 21 March 2007.
His Protection visa application indicates that he was an owner of a clothing and jewellery company in Gujarat. He claims he was subject to fearful demands of money by thugs for being a businessman. When he asked police for help, they asked for bribes which he refused to pay believing that it is an unlawful and unethical. Consequently the police did not help him and the thugs damaged his property, threatened and harmed him. He was physically assaulted by the thugs on several times and the applicant was not satisfied that he would be protected in India, so elected to depart.
The applicant indicates that he fears persecution because he believes that the authorities are unwilling to protect him in light of his refusal to pay bribes and that this will leave him at the will and the mercy of extortionists. He fears that the extortionists will harm and mistreat him if he returns to India.
He also states that the judiciary is corrupt and matters have accumulated to the extent that legal action takes many years. If the applicant were to initiate legal proceedings, the thugs would harm him further. He states that he has no confidence that the police will protect him.
The applicant arrived in Australia on 28 March 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 14 May 2007.
A delegate of the Minister decided to refuse to grant the visa on 28 May 2008 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) on 20 June 2007 for review of the delegate’s decision and it is the decision of Lilly Mojsin, dated 30 August 2007, reference No.071512390, that is the subject of judicial review in these proceedings.
A Court book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”, and an affidavit of Megan Louise Palmer, sworn 28 April 2008, is marked Exhibit “B”, and this is the only evidence before the Court.
At the first court date directions hearing, the applicant indicated to the Court that he wished to participate in a scheme which provides unrepresented applicants in refugee matters with independent legal advice on the prospects of success of their appeal. The Court file indicates that the applicant was allocated a panel advisor. A letter from that panel advisor indicates that he received no response from the applicant to attend a conference and receive advice. The panel advisor did prepare written advice and forwarded that to the applicant at his last known postal address.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 17 December 2007. This order was not complied with.
The Tribunal by letter dated 19 July 2007 invited the applicant to appear at the hearing on 20 August 2007 to give oral evidence and present arguments in support of their case. The letter to the applicant contained an “invitation” to the applicant to appear in order to provide evidence in compliance with s.425 of the Migration Act 1958 (Cth) (“the Act”). The notice specified the day, time and place of the hearing and was provided to the applicant by one of the means specified in s. 441A of the Act. These details are contained in the affidavit of Megan Louise Palmer.
The “Invitation” provided the applicant with a time which was in excess of the prescribed time period of 14 days, which is contained in regulation 4.35D of the Migration Regulations 1994. Also contained in the statement was information indicating that if the applicant failed to attend and provide evidence that the Tribunal under the provisions of s. 426A it would proceed to make a decision without making any further contact with the applicant.
Accordingly the invitation complied with the statutory requirements contained in s. 425(1) and 425A of the Act and reg. 435D of the Migration Regulations1994 (Cth). It is noted that the Tribunal did not receive a reply to the letter of 19 July 2007 and that the applicant did not subsequently attend the hearing.
If an applicant does not appear before a Tribunal after a valid invitation under s.425, the Tribunal is permitted to proceed to make a decision without taking any further action to allow or enable the applicant to appear before the Tribunal, as contained in s. 426A of the Act. In accordance with s.65 of the Act, a delegate of the Minister must be satisfied that the requirements have been met when granting visas. Any subsequent Tribunal or judicial review is obliged to ensure that the delegate complied with that requirement.
It is difficult to satisfy the Tribunal if the applicant does not provide sufficient information by not attending the hearing to give evidence. The Tribunal had limited information in respect of the applicants’ claim, which was restricted to the answering of the questions in the original visa application. No further submissions or evidence was provided.
In a situation where there is an absence of finding of satisfaction by the Tribunal, a visa application must be rejected. The Tribunal’s rejection of the application was an inevitable consequence of the applicant’s non-attendance at the hearing.
The circumstances of this case are similar to those in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCR 1195. In that case Allsop J found that an applicant did not attend the Tribunal hearing and his Honour recorded the relevant reasons for the Tribunal’s decision in the following paragraphs of his decision:
The applicant – [name provided] – has not provided the level of detail necessary to satisfactorily establish the relevant facts of his case and the applicant in this case.
Then in paragraph [29] his Honour states:
… the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason…
In SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 which is another matter where an applicant did not attend the Tribunal hearing, the Federal Court emphasised the requirement to evaluate the Tribunal’s reasons. Justice Allsop stated at [11] and [12] of that decision:
[11] The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
[12] In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.
As in SZEZI, this was not the reason or part of the reason for the Tribunal’s 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.
In the applicant’s original application are three grounds of review. These have been addressed in the written submissions provided by the respondent’s solicitor. In the circumstances of the case, it is not immediately apparent that these grounds of review are relevant. However the first ground claims that the Tribunal’s decision was in breach of s. 424A(1) of the Act in that the Tribunal did not disclose the information in accordance with s. 424A(1).
The reasoning of Allsop J in SZEZI and SZCIA applies to the present case. The Tribunal did not make positive findings of fact 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 Convention. This proposition is clear from the Tribunal’s conclusion (CB 59-60).
The applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. He did not provide any further information to support his claims nor did he give the Tribunal the opportunity to explore relevant aspects of his claims with him. I accept that there is corruption in the police force. Without further information from the applicant I am not satisfied the applicant is a businessman or that he was subject to demands for money by thugs. Without further information I am not satisfied he asked the police to help him or that they asked for bribes or that the police did not help him or that thugs damages his property, threatened or harmed him.
As I am not satisfied that the applicant suffered any harm in India, I find that the applicant did not flee India fearing harm.
It is not immediately apparent that s. 424A(1) is enlivened from result of the decision because the decision was based on the Tribunal’s inability to be satisfied in accordance with s. 65 of the Act. The Tribunal was not satisfied that the applicant met the required criteria for the granting of the Protection visa under s.36 of the Act. Hence, the decision was based on an insufficient information provision and was not the basis upon which the operation of s. 424A(1) is enlivened.
In the circumstances, I am not satisfied that this ground raises any ground of review and should be dismissed.
The second ground claims that the Tribunal made an error of law in that it lacked procedural fairness and therefore committed a jurisdictional error. This is not particularised and there has been no attempt to identify what procedures or what areas of law have not been complied with. I note that the respondent’s submissions indicate that in this case s. 422B of the Act applies and that the Tribunal is not required to afford the applicant common law natural justice. The applicant was only entitled to the rights granted to him under Part 7 of the Act and the Tribunal has complied with the various requirements of Part7, Division 4 of the Act. In effect the applicant has been accorded procedural fairness.
The third ground claims that the Tribunal denied the applicant natural justice because the Tribunal was wrong in concluding that the applicant’s claims were not Convention related, such as significant economic hardship. This was not the basis of the Tribunal’s decision. As referred to above, the Tribunal made its decision because of its lack of satisfaction that the applicants complied with the requirements of the Convention. Therefore, this ground should also be rejected.
None of the grounds of review identified in the application for review have identified or supported any claim for jurisdictional error nor is it apparent from a fair reading of the Tribunal decision that any other error exists.
Consequently, the application should be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
2 June 2008
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