SZLOL v Minister for Immigration
[2008] FMCA 1076
•23 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1076 |
| MIGRATION – Review of decision of RRT – where applicant did not attend hearing – where grounds of application not responsive to decision. |
| Migration Act 1958, ss.65, 91R, 424A |
SZLOJ & Anor v Minister for Immigration [2008] FMCA 1087
| Applicants: | SZLOL & SZLOM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3340 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 3340 of 2007
| SZLOL & SZLOM |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants, a husband and wife, are citizens of India. They arrived in Australia on 8 April 2007 and on 12 May 2007 applied to the Department of Immigration & Citizenship for protection (Class XA) visas. 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 22 August 2007 the Tribunal wrote to the applicants advising them that it had considered the material before it but was unable to make a favourable decision on that information alone and invited them to a hearing on 19 September 2007. Together with the letter was a response to hearing invitation form. That form was not completed and the applicants did not attend the hearing. On 19 September 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 9 October 2007.
The grounds upon which the male applicant claimed to be a person to whom Australia owed protection obligations are found at [CB 32-34] in a document entitled “Letter of claim”. It should be noted that his wife completed Form D for a member of a family unit who did not have her own claim to be a refugee. In his statement the applicant indicated that he was an active member of the Congress party and worked as a type of political social worker in his area. His father had been a dedicated worker for the party and he achieved a good position within it. He claimed that unfortunately his activities came to the notice of the opposition BJP and Shivsena parties; they got together and defamed him and tried to destroy his political career. He gave up politics for a while but returned to assist in municipal council elections.
“One day I was back to my home in mid-way two person stopped my car and said to help them lift when I open the door to help them, several people come to attack me, they are with dangers arms, they hurt me and burnt my car but gave me final warning to disappear from this place and don’t do any political activities against them.”
The party won the election and he forgot about this incident but at some time in the future (unspecified):
“I was returning to home from business some people attacked from back, I got fainted for while after some time I found myself tied up my hands and legs locked at unknown place. After 2 or 3 hours few people came to me and released me. They were unknown face for me. They said to me that they were members of gangs operated by local mafia and they got tip to finish me and my family, but they said there is still one more chance for me to save my life by leaving this place and will never come back
...
I was scared by those people also it was impossible for me to relocate somewhere else in India because it would have created same problem for me.”
The Tribunal rehearsed this statement in its findings and reasons and noted that the applicant had not provided any dates, locations or names of any people he had worked with in the Congress party or details of the incidents when he was a victim of Hindu anger.
“He does not explain how the police was able to inform him that his attackers were notorious persons and believed in a strong Hindu policy but could not find the attackers. He does not explain which municipal elections he was referring to and what political work he had been involved in when promoting the party candidates.”
The Tribunal found that in the absence of any details from the applicant and on the basis of the very limited information before it, that it could not accept his claims and, because it had rejected his claims, it found that he would not engage in political or social or religious activities if he was to return to India now or in the reasonably foreseeable future and found that there was no real chance of persecution for any of the convention reasons.
The findings of the Tribunal, which essentially were that it could not be satisfied as required by s.65 of the Migration Act 1958 (the “Act”) was almost inevitable given the lack of particularity in the applicant’s statement and his failure to attend the hearing.
The applicant, in his amended application filed on 5 February 2008 gives a number of grounds upon which he believes that the Tribunal fell into jurisdictional error. I would note that these grounds are identical to grounds in matter SZLOJ & Anor v Minister for Immigration [2008] FMCA 1087 which I decided immediately prior to this hearing. That fact is not remarkable because this applicant and his wife and SZLOJ & Anor share a number of characteristics, including that of name, address, nationality and attendance at school. In all probability they requested the same “friend” to prepare the amended document and, for that reason, there is a lack of responsiveness in it to the Tribunal’s decision. Notwithstanding this, I propose to deal with each of the grounds in turn.
The first ground is that the Tribunal had wrongly applied the law to the facts and misinterpreted s.91R of the Act. There is no debate in the Tribunal’s decision as to the seriousness of the harm the applicant suffered, doubtless because the Tribunal found that the applicant did not suffer any harm at all. This ground is not available to the applicant in my view.
The second ground, which commences as a separate paragraph to ground 1 but is continued in ground 2, relates to s.424A of the Act. It starts by claiming the Tribunal failed to provide him an opportunity (to do what, we know not) but if, like the previous applicant, he means that he was not given an opportunity to provide documentary proof then, like the previous applicant, he was written a letter on 14 August 2007 (CB 97-98) telling him to immediately send to the Tribunal any documents, information or other evidence that he wanted the Tribunal to consider. He did not do so.
The applicant then complains that the Tribunal utilised adverse information provided by him for the purpose of the review without giving him the appropriate notice under s.424A(1) of the Act. I am not satisfied that the Tribunal utilised any adverse information. Its decision was not based upon such information but upon the very lack of information provided by the applicant. Be that as it may, this case is governed by the new provisions found in s.424A(3)(ba) which came into force on 29 June 2007 prior to this hearing. This ground cannot succeed.
The third ground is in the following form:
“The Tribunal has importantly dealt with the aspect of the applicants' claim relating to state tolerance and complicity of the applicants' religion and membership of a particular religion 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.”
The applicant is a Hindu. The only reference he makes to another religious group in his claims is when he says:
“He also helped the Muslim people during the communal riots without discrimination on cast and religion. These activities put him against the BJP and Shivsena workers.”
The Tribunal did consider this because it has rehearsed the entire statement in its findings and reasons. Like other statements in the document it is vague and unsupported by particulars and that is why the application was unsuccessful; not because the Tribunal failed to deal with it but because in dealing with it the Tribunal was unable to progress the matter without further assistance from the applicant that it did not get when the applicant did not attend the hearing.
The second part of paragraph 3 of the grounds and reasons refers to a Tribunal conclusion that the applicant could relocate to other parts of India. The Tribunal came to no such conclusion.
Before me today the applicant did not say anything. In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. I dismiss the application. I order the Applicants to pay the First Respondent's costs assessed in the sum of $1,800.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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