SZLOJ v Minister for Immigration
[2008] FMCA 1087
•23 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1087 |
| MIGRATION – Review of decision of RRT – where applicant did not attend hearing. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Applicants: | SZLOJ & SZLOK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3339 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 July 2008 |
| Date of Last Submission: | 23 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicants to pay the First Respondent's costs assessed in the sum of $1,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3339 of 2007
| SZLOJ & SZLOK |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of India. They arrived in Australia on 8 April 2007 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 12 May 2007. On 23 July 2007 a delegate of the Minister refused to grant protection visas and on 14 August 2007 the applicants applied for a review of that decision from the Refugee Review Tribunal. On 14 August 2007 the Tribunal wrote to the applicants [CB 95] acknowledging their application. The letter had a section entitled, "What does the Tribunal expect me to do?" This section included the requirement that the applicants:
“Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified Translator.”
On 22 August 2007 the Tribunal wrote to the applicants informing them that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to a hearing on 19 September 2007. It sent them a form known as a “response to hearing invitation form” but that form was not returned to the Tribunal and the applicants did not attend the hearing. On 19 September 2007 the Tribunal determined to affirm the decision not to grant a protection visa.
The ground upon which the male applicant claimed to be a person to whom Australia owed protection obligations was found in a statement made by him at [CB 32-34]. He claimed that he was born into a family of important BJP supporters and worked for that party himself in his local area. He was a successful local businessman. After some time working for the BJP he was asked not to take any further part in party activities because some young Turks were going to join the party. The applicant was distressed at the attitude taken by the senior members of the BJP. Some time later he joined the Congress party and worked on their behalf. He claims that on a date unspecified:
“When I was coming from a friend's house I found some unknown people with other persons and they attacked me same, I was not alone but along with together my wife. They assaulted both of us so we were injured and hospitalised. I lodged complaint against same people in police station.
After some time my other party member said that these persons are very dangerous and maybe there is some political conspiracy also involved due to backing of some opposition political leaders and all those people had very bad criminal history during their past.”
A further incident in which people chased him with "arms in their hand and tried to abduct him" is also referred to, again without a date or place.
No further information than that which I have referred to was provided to the delegate or the Tribunal. The Tribunal rehearses this information in its grounds and reasons [CB 110-112] and notes that the description of the activities in which the applicant was involved in both the BJP and the Congress party was vague. There is no explanation of how he campaigned for either party, nor does he explain how local Muslims or the opposition tried to assault him but failed. The description of the attacks upon him was considered as vague and lacking in detail. The Tribunal noted that the applicant did not explain what people were wandering in his area and looking for him.
It is not surprising that with the applicant's non-attendance at a hearing the Tribunal was unable to be satisfied of the veracity of his story and came to the view that it could not accept that he was discriminated against in the manner described. The Tribunal rejected the applicant's claims and found that he would not engage in political, social or religious activity if he was returned to India "now or in the reasonably foreseeable future."
The applicant's wife completed Form D which is for a member of the family unit who does not have their own claim to be a refugee but is included in the application.
On 5 February 2008 the applicant filed an Amended Application with this court. The grounds of the application were firstly that the Tribunal had wrongly applied the law to the facts in relation to the seriousness of harm that constituted persecution. As best understood the applicant is complaining that the Tribunal misconstrued s.91R of the Migration Act 1958 (the Act”) but in fact this was not ever in issue. The Tribunal simply could not be satisfied that the events described by the applicant had ever occurred and in those circumstances it was not necessary to conclude whether or not they constituted the serious harm.
The second matter raised by the applicant was that the Tribunal had failed to provide him more opportunities and generalised his claim and failed to apply the correct test in accordance with s.424A(1) of the Act. Before me today the applicant said that he could not have an opportunity to produce more documents as proof and I take that comment to be qualifying the second ground. But, as I pointed out at the commencement of these reasons, the applicant was written a letter on 14 August 2007 telling him to provide the Tribunal with any documents and he did not do so nor did he ask the Tribunal for any further time. I am unable to assist the applicant in relation to this ground.
I am not entirely clear what the applicant means in regard to the complaint about s.424A(1). So far as I can see the Tribunal did not utilise any information other than the applicant's own statement and it did not utilise that information against him but merely commented that it did not satisfy the Tribunal that the applicant was a person to whom a visa should be granted. This point is taken up further by the applicant in what is described as paragraph 2 of his grounds of application when he says that there was certain information used by the Tribunal without providing him an opportunity to respond and that the information used by the Tribunal was not given by the applicant for the purposes of the review. Unfortunately for the applicant any strength that there might have been in this argument was removed by the amendments to the Act in s.424A(3)(ba) that came into force on 29 June 2007 prior to his own hearing. This ground cannot be sustained.
The third matter raised by the applicant is that the Tribunal:
“Importantly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the applicant's religion and membership of a particular religion or social group and as a result of all he faced financial hardship, to whom Australia has protection obligation as a member of such group.”
The applicant at no time made a claim of persecution because of his religion or membership of a particular social group. His claim appears to me to have been made on the basis of his political opinion. The references to the Muslim community are that that community tried to demoralise the applicant in his business and party activities by using political techniques. The statement indicates that that was not successful so there was a plan to assault him in his business but there is no statement that that assault occurred.
Paragraph 3 of the applicants’ Amended Application which commences with the reference to the religion continues with a reference to relocation. It seems to me that this whole paragraph was drawn by a person other than the applicant who had never read the Tribunal's decision because there is no reference whatsoever to relocation in it.
I am satisfied from my reading of the Tribunal decision that it was one made based upon a lack of satisfaction arising out of a failure of the applicant to particularise his claims which he was given an opportunity of doing at a hearing that he did not attend. In the circumstances I cannot see that the Tribunal fell into jurisdictional error in the manner in which it came to its decision.
I dismiss the application. I order that the Applicants pay the First Respondent’s costs assessed in the sum of $1,800.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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