SZLOZ v Minister for Immigration - [2008] FMCA 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 646

MIGRATION – Review of Refugee Review Tribunal decision – absence of requisite Convention nexus – no failure to afford procedural fairness – no denial of natural justice – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(1), 422B, 424A(3), 424A(1), 425, Division 4 of Part 7

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

SZLOZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3403 of 2007

Judgment of:

Nicholls FM

Hearing date:

12 May 2008

Date of Last Submission:

12 May 2008

Delivered at:

Sydney

Delivered on:

12 May 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 19 November 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3403 of 2007

SZLOZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 2 November 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 September 2007, and handed down on 27 September 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Prior to the first Court date the first respondent put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a national of India who arrived in Australia in April of 2007 and applied for a protection visa on 30 April 2007. The relevant documentation is reproduced in the Court Book at CB 1 to CB 32. It appears that the applicant was one of a large number of people from India who came to Australia as part of what was described as the “Rajasthan Cricket Federation Team” to play cricket in Australia. Although I note that the applicant subsequently told the Tribunal that he was not actually a cricket player.
The applicant, along with 22 others, consulted a migration agent who assisted them with applications for a protection visa. The applicant put forward the claim that he did not have civil and political freedom in India (I refer here in particular to what is reproduced in the Court Book at CB 27), and that he suffered from poverty and starvation and that this was a result of his being a member of a particular social group, namely farmers from Rajasthan.
Following refusal of the protection visa the applicant applied for review by the Tribunal in June of 2007. I note here the application for review is reproduced in the Court Book at CB 45 to CB 48. The applicant subsequently appeared before the Tribunal on 30 July 2007 and gave evidence. The Tribunal’s account of what occurred at the hearing is set out at CB 65 to CB 67 being part of the Tribunal’s decision record.
Before the Tribunal the applicant confirmed that he was a farm labourer and that he had given an agent 700,000 rupees, which his family had borrowed against the security of land which they owned, so that the applicant could come to Australia using the cricket tour for that purpose.
The applicant feared that if he were to return to India the people from whom he had borrowed this money (it would appear that he was unable to repay it), would catch him and harm him, and the applicant further claimed that he suffered problems such as poverty and starvation because he was a farmer from Rajasthan. The applicant also claimed he did not have civil and political freedom in India.
The Tribunal found as follows:
1)The harm that the applicant feared from the people from whom he had borrowed money, and in particular the harm feared that he would be pursued for reasons also of his membership of a particular social group, was dealt with firstly on the basis that the Tribunal could not find a requisite connection with one of the five Convention reasons.
2)That there was no connection between the persecution that the applicant said that he feared and the proposed particular social group of farmers from Rajasthan.
The Tribunal also found in this regard that there was nothing in the material before it to suggest that farmers from Rajasthan were treated any differently from other members of Indian society for reason of their membership of that social group.
The Tribunal did not accept that if the applicant were to return to India (and this was based on independent evidence available to it), that there was a real chance that he would be denied, or prevented, from exercising his civil and political rights such as to amount to persecution involving serious harm as required and envisaged by s.91R(1)(b) of the Act.
Further, the Tribunal was unable to be satisfied that the essential and significant reason for the applicant’s problems, that is generally his poverty, starvation or lack of education, had any connection to any of the five Convention reasons as required by s.91R(1)(a) of the Act.
In all, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Refugees Convention reason if he were to return to India. It therefore concluded that the applicant was not a person to whom Australia owed protection obligations, and on this basis it affirmed the decision under review.
The application before the Court puts forward the following grounds:
“1.The RRT denied proper application of law to the applicant;
2.The RRT denied natural justice to the applicant.
3.The RRT did not follow due procedure.”
I note also in the applicant’s affidavit which annexes the Tribunal decision that the applicant also asserted that the Tribunal decision “denied natural justice to the applicant” and “the RRT did not follow due procedure of law”. [Further, the applicant asserted in that affidavit that “the RRT denied proper application of law”.]
The applicant appeared before the Court in person today. He was assisted by an interpreter in the Hindi language. Ms B Anniwell appeared for the first respondent. I note that in addition to the Court Book, the Court also has before it the Minister’s formal response to the application and a written outline of submissions.
At the first Court date in this matter, which was conducted on 20 February 2008, the applicant was given, amongst other things, specific opportunity to file and serve an amended application, to file and serve any evidence on which he wanted to rely before this Court, and the opportunity to provide a short written outline of submissions. Despite that opportunity, the applicant has not put anything further before the Court beyond the very general and unparticularised grounds that he puts in his application.
I note also that the applicant did apply for access to the Court’s Refugee Review Tribunal Legal Advice Scheme, and attended a conference with a barrister on the panel of that scheme. I should just note a barrister who has appeared before the Court and has, in the Court’s view, with respect, experience in these matters. Following the conference, which was conducted with the assistance of an interpreter in the Hindi language, the applicant was subsequently given advice.
At the hearing today, the applicant was unable to assist the Court further. He at first said that his reason for coming to the Court was to allow the Court to decide his case. When pressed, the applicant said that he did not wish to say anything at this stage. When the Court explained that this was the final hearing of his matter, and that he would have no further opportunity before this Court, the applicant explained that he could not go back to India because he was very poor, and that he borrowed money to come to Australia, that he was required to pay this money back, and that he feared persecution if he had to go back because he would be beaten up or otherwise harmed or his house would be burnt if he did not pay the debt. In essence, this was a repeat of the claims put before the Tribunal.
The applicant does not particularise what he means by the assertion that the Tribunal “denied proper application of law”. On what is before the Court, the Tribunal properly considered the applicant’s claims to see if it could discern a connection, a nexus, between those claims and the Refugees Convention. Further, the Tribunal considered whether the applicant’s claim to persecution fell within the requirements of the definition of the term “Refugee” as set out in s.91R of the Act which, of course, further expands on the concept and definition of “persecution” as set out in Article 1A(2) of the Refugees Convention.
The Tribunal found, variously, that the applicant’s claims did not exhibit a Convention nexus, and did not satisfy the requirements set out in ss.91R(1)(a) and (b) of the Act. The Tribunal gave very clear reasons for its findings in this regard, reasons leading to findings which, in my view, were open to it on the material before it, and I cannot discern error in how the Tribunal has applied the relevant law to the applicant’s circumstances. (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
As the Tribunal decision relevantly turned on these matters, and to the extent that it turned on matters set out in s.91R of the Act, in the Tribunal’s view of these matters, I cannot see that any other section of the Act can be said to be relevant to the applicant’s very general complaint. In all, therefore, I cannot discern error as stated in the application to the Court.
The applicant also complains that he was “denied natural justice” by the Tribunal. I note that this is a case to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act (as it was prior to 29 June 2007), the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
On any perusal of the material before the Court I cannot see that the Tribunal failed to follow the obligations as set out in that Division of Part 7. Relevantly, in terms of s.424A of the Act, the Tribunal’s decision turned on the evidence that the applicant himself provided at the hearing, and to relevant independent country information available to it. Both sets of “information” clearly fall within the exception contained in s.424A(3)(a) and (b) of the Act from the requirements set out in s.424A(1) of the Act.
The applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act, at which he attended and gave evidence. The applicant has not put any evidence before the Court, for example by way of a transcript of the Tribunal hearing, to challenge the Tribunal’s account of what it said occurred at the hearing. On what is currently before the Court, I cannot see that the applicant was denied the opportunity of a meaningful hearing, and the opportunity to put forward his claims and explanations (De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 368).
Bearing in mind what the High Court said in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [44], the Tribunal plainly referred the applicant to what I describe as the relevant substratum of facts relevant to the issue on which the Tribunal’s decision turned, that is, that the applicant’s claims did not satisfy the requirements of s.91R and did not display a Convention nexus. Even looking at the applicant’s claims, there is nothing before the Court to show that the Tribunal did not discuss each aspect of those claims with him, and in relation to each set of those claims, put the applicant on notice as to the relevant issue, and gave him the opportunity to comment on whether the applicant’s claims could indeed satisfy the relevant statutory or Convention requirement.
In this regard, I note in particular the following at CB 66.9 where the Tribunal said:
“I explained to the applicant that, as I had mentioned at the beginning of the hearing, his fear had to bear the requisite connection with one of the five Convention reasons.”
The Tribunal’s account plainly shows that the Tribunal put the applicant on notice of the difficulties of his claims in meeting this requirement.
At CB 67.3 the Tribunal says:
“I put to the applicant that the problem was that there did not appear to be any connection between the persecution he feared …”
(a direct reference to the applicant’s claims relating to problems with poverty and starvation because he was a farmer from Rajasthan”
“… and the suggested particular social group.”
Further at CB 67.4:
“I noted that it was not enough that he was a member of a group such as ‘farmers in Rajasthan’, and that he had problems. The problems had to be ‘for reasons of’ his membership of the particular social group.”
At CB 67.5, this was in relation to the claim of the denial of civil and political freedom in India, the Tribunal said:
“I put to the applicant that India was a longstanding and stable democracy and that the independent evidence suggested that elections were free and fair. I put to him that, although there were problems, the Indian government generally respected the rights of its citizens.”
Therefore, it is clear that the applicant was put on notice of the matters that went to the determinative issue in his case, and I cannot discern error with reference to any other part of Division 4 of Part 7 of the Act.
Despite the opportunity today, the applicant did not say anything about why he claimed in his application that the Tribunal did not follow due procedure. As submitted by Ms Anniwell for the Minister, this ground of review in particular does not identify any error in the Tribunal’s processes or reasoning, and on what is before the Court I cannot discern any such error in the processes adopted by the Tribunal, nor in its reasoning.
Ultimately, the Tribunal dealt with each of the applicant’s claims, the applicant was given the opportunity of, and did have, a fair hearing. He was put on notice as to the issue that was determinative of his case, he was given the opportunity to comment, and ultimately, for reasons which were patently open to the Tribunal, it made findings that the claims could not establish a Convention nexus, nor satisfy the relevant definition of “persecution” as set out in the Act. Ultimately, the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations.
I cannot discern error in what the Tribunal has done as it is said to arise by what is stated in the application to the Court. Nor can I otherwise discern jurisdictional error on the part of the Tribunal. As the applicant’s application is dependent on such error being identified, I dismiss the application before the Court.
I note that the applicant, in relation to the issue of costs, said that he does not work and therefore cannot pay any costs, and that a friend helps him and that he does not have any money. Firstly, on the issue of whether I should make an order for costs in this matter, there is, in my view, nothing before the Court that would move the Court not to make such an order. I do not regard the insufficiency of funds or the lack of money, or indeed the unemployed status of the applicant, as sufficient reasons such that the order should not be made.
As I explained to the applicant, it was his right to come to this Court but, as with the exercise of many rights, come consequences and the applicant’s lack of funds were plainly something that was known to him at an earlier time. I will therefore make the order for costs. As to the amount; I am guided by what is reasonable in the circumstances and I note in this regard that the relevant Schedule to the Rules of this Court provide in matters of this type for an amount double that of the amount sought by the first respondent today. In any event, given the work that has been done by the first respondent’s legal representatives (and I note multiple copies of the Court Book, the filing of a response and the filing and serving of written submissions, attendances on two occasions by a solicitor), that in all these circumstances the amount sought, in my view, is a reasonable amount and I will make that order in those terms.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 22 May 2008