SZLPA v Minister for Immigration
[2008] FMCA 414
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 414 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is national of India claiming fear of persecution as a member of a particular social group and because of his illicit relationship – whether Tribunal denied the applicant natural justice – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| Applicant: | SZLPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3406 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 March 2008 |
| Date of Last Submission: | 20 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Warner-Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,600.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3406 of 2007
| SZLPA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that was handed down on
27th September 2007. The Tribunal affirmed the decision of a delegate of the Minister for Immigration not to grant the Applicant a Protection (Class XA) Visa.
The Applicant asks the Court to make a declaration that the Tribunal decision is invalid and of no effect. He also asks the Court to remit his application to the Tribunal. Further, he asks that he should not be removed from Australia during the hearing of his application.
At the hearing today I have explained to the Applicant that in order for the Court to make the orders that he asks, the Court must be satisfied that the decision is affected by jurisdictional error. In his application the Applicant sets out three grounds:
a)The RRT denied proper application of law to the Applicant.
b)The RRT denied natural justice to the Applicant.
c)The RRT did not follow due procedure.
Background
By way of background, the Applicant arrived in Australia as part of a group from the Rajasthan Indoor Cricket Federation. The Applicant and other members of his group met with a migration agent, a
Mr Raymond Solaiman, who submitted a statement in respect of this Applicant and 21 other people. That statement was received by the Department of Immigration and Citizenship on 30th April 2007. It accompanied an application for a protection visa submitted by the Applicant.
The statement submitted with the application for a visa said this:
“Number of clients: 22.
Country of citizenship: India.
They met me approximately at 8 pm last night. They all told me that they do not want to go back to India.
Their brief claim is (that) they do not have civil & political freedom in India. They suffer from poverty and starvation and all these happened as a result of their particular social group “farmers from Rajasthan”.
I did not have an opportunity to speak to them individually in details. Therefore I still am not in a position, whether they all or any of them have a reasonable prospect of success. However, considering the fact that their substantive visa expires today, I decided to print out copies of form 866 and help them to come to DIAC office.”[1]
[1] See Court Book at page 32
The delegate considered the application, noting the claim for protection as this:
The applicant claims to be a married male farmer from Nagaur district in Rajasthan state. In summary, he fears return to India because he does not have civil and political freedom in India and suffers from poverty and starvation as a member of a particular social group of farmers from Rajasthan.[2]
[2] See Court Book at page 42
The delegate considered that application and considered Independent Country Information about India. The delegate was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention based on the Independent Country Information which the delegate considered.[3]
[3] See Court Book at pages 44 - 47
Application for RRT Review
The Applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision. That application was received on
20th June 2007. No additional documentation was provided with the application.
The Tribunal wrote to the Applicant on 4th July 2007 inviting him to attend a hearing to take place on 8th August 2007. The hearing was to take place by videoconference at a police station in a country town and an interpreter in the Hindu language and the Tribunal Member were to be in Sydney. The letter of invitation went on to say, however:
If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.[4]
[4] See Court Book at page 54
The Applicant attended the hearing by videoconference and gave evidence with the assistance of an interpreter. The hearing commenced to 2:10pm and concluded at 3:00pm. The times are set out on the RRT hearing record in the Court Book.[5]
[5] See Court Book at pages 56 and 57
The Tribunal on 9th August posted a copy of the tape recording and hearing to the Applicant. The Tribunal signed its decision on 8th September and handed it down on 27th September 2007. A copy of the Tribunal decision record appears at pages 65 through to 74 of the Court Book.
The Tribunal noted the Applicant's claim in his original application and also noted the Applicant's evidence at the Tribunal hearing. The Applicant told the Tribunal about a claim that was not in his original application and had not therefore been considered by the delegate. The Applicant told the Tribunal that he had been driving a taxi for a living and he transported students in his taxi. He said that he had developed an illicit relationship with a female student. This caused hostility in the community and members of the community told the Applicant's father to oust him from the family home. He claimed to have been harassed by members of the community and as a result his father had arranged for him to leave the country.
The Tribunal went on to consider that and reported:
The applicant said that this had been the only reason why he had had to leave India. I noted that in the statement accompanying his original application it had said that as a farmer from Rajasthan he had suffered from problems like poverty and starvation. The applicant said that his father had been engaged in farming and they had a small piece of land.[6]
[6] See Court Book at page 70
The Tribunal went on to consider what the Applicant said was really his case, namely the Applicant's claim that he believed that his case came under the convention ground of religion because the community had been saying that if a person had an extramarital relationship then they should be ousted from society. The Tribunal also considered the Applicant's claim in the original application that he did not have civil and political freedom in India.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 71 and 72 of the Court Book and appear to be duplicated on pages 73 and 74. The Tribunal noted that the main claim which the Applicant made at the hearing was that he had been ousted from his community because he had developed an illicit relationship with a female student. The Tribunal noted that generally speaking being ostracised from the community would not in itself amount to persecution for the purpose of the Convention and put that to the Applicant.
The Tribunal noted:
The applicant said that his father had told him that it would be better if he were to die here rather than go back to India, because if he went back the family would be ‘spoiled’. However, it does not appear from the applicant's evidence that the persecution he fears is anything more than being ostracised by his community as a result of the illicit relationship. I do not accept that this in itself amounts to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act.[7]
[7] See Court Book at page 71
The Tribunal also considered the claim in the original application, that as a farmer from Rajasthan he had suffered from poverty and starvation. The Tribunal found that the problems identified, namely poverty, did not bear the necessary relationship with one of the five Convention reasons and was not satisfied that membership of the particular social group that he claimed was the essential and significant reason for the persecution which he fears.
The Tribunal explained it in this way:
As I indicated to the applicant, ‘farmers from Rajasthan’ may be a particular social group but the problems to which reference was made - essentially poverty- are not the result of anyone singling out ‘farmers from Rajasthan’ for persecution.[8]
[8] See Court Book at page 72
The Tribunal went on to find that there was nothing in the material before the Tribunal to suggest that farmers from Rajasthan were treated differently from other members of Indian society for reasons of their membership of that particular social group. The Tribunal was not able to be satisfied that one or more of the five Convention reasons was the essential and significant reasons for the problems of poverty and starvation further to any original application.
The Tribunal then went on to the Applicant's claim in his original application, that he did not have civil and political freedom in India. The Tribunal, however, referred to Independent Country Information from the United States State Department, Country Reports on Human Rights Practices for 2006 in relation to India.
The Tribunal noted the Applicant's claims that in India everything was organised by rich people and that poor people did not enjoy any freedom, and that elections were not fair, and that the people who won elections only did so because they have money.
However, the Tribunal relied on the independent evidence and did not accept that if the Applicant returned to India at the time of the hearing or in the reasonably foreseeable future, that there was a real chance that he would be prevented from exercising his civil and political rights in such a way as to amount to persecution involving serious harm as required by paragraph 91R(1)(b) of the Migration Act.
The Tribunal, therefore, was not satisfied that the Applicant had a well founded fear of being persecuted for a Convention reason if he were to return to India at that time or in the reasonably foreseeable future, and found that he was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) Visa.
Application for Judicial Review
The Applicant now seeks judicial review of that decision, claiming a denial of proper application of law, a denial of natural justice and the fact that the Tribunal did not follow due procedure.
Submissions
Whilst he did not file a written outline of submissions the Applicant has attended Court and made oral submissions. He, in answer to questions from the bench, told the Court that his application had been prepared for him by a lawyer. He said that he felt that he did not get a proper decision from the Tribunal. He said this was because he had told the Tribunal his problems about his society because he was targeted there, and that he did not want to go back.
He was not able to identify any specific section of any piece of legislation that had been breached and said that the Tribunal had not followed proper procedure because he knew that in the Refugee Review Tribunal cases go on for a long time, but the Tribunal gave him his decision very soon which was why it was clear to him that the Tribunal did not follow the right procedure.
The Applicant went on to tell the Court that he cannot go back to India because his life was at risk and his family had been boycotted. If he lived with his family they would be boycotted. His father had great difficulty in arranging for him to leave the country and come to Australia. If he were to return to India he said that his life would be at risk and it was not safe to return.
Ms Warner-Knight for the Minister for Immigration submitted, and I believe accurately, that the Applicant's claims before this Court amount to complaints against the Tribunal's factual finding. It is well established that so long as there is evidence upon which a factual finding can be made, there is no scope for the Court on judicial review to intervene in factual decisions, as they are matters for the Tribunal.
Conclusions
Dealing with the Applicant's grounds the Applicant was not able to identify any error at law in the Tribunal decision, and it is difficult to see what error at law there would be. It is difficult to see also that the Applicant was denied natural justice.
The Tribunal complied with s.425 of the Migration Act by inviting him to a hearing and gave him sufficient time to attend. The Applicant was provided with an interpreter in the language.
True it is that he gave evidence by videoconference with the Tribunal Member and the interpreter in Sydney. However, the Applicant was offered the option of attending personally at a hearing in Sydney but chose not to take that offer up.
The Tribunal considered the Applicant's claims in his original application, namely being a member of a particular social group, farmers from Rajasthan suffering from poverty, and claim of being denied civil and political freedom in India. The Tribunal asked the Applicant questions about these issues, which had also been considered by the delegate.
The Tribunal also considered the Applicant's claim which had not been in his original application, that he had been ostracised by his community because of his illicit relationship with a woman. The Tribunal considered that claim and rejected it as not having any Convention basis. I am unable to identify any denial of natural justice. I am unable to identify any procedural breach by the Tribunal.
This is not a case where any claim was made of a breach of s.424A of the Migration Act and there does not appear to me to be any breach of the Act in any event.
The Applicant's main claim was the claim made apparently for the first time at the Tribunal hearing. In my view the Tribunal considered that and rejected it. The other claims in the Applicant's protection visa application were considered by the Tribunal and rejected.
I am aware of the fact that the Applicant is not legally represented in these proceedings. I have looked at the decision carefully in order that if there is any jurisdictional error, whether argued by the applicant or not, I could consider it. I am unable to see any jurisdictional error. The Applicant has not identified any error today other than those in his application.
In the absence of jurisdictional error it follows that the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of declaration or mandamus or prohibition which the Applicant seeks.
It follows that the application must be dismissed.
There is an application for costs in the sum of $3,600.00. The Applicant has been unsuccessful in his claim. I am satisfied this is a proper case for an order for costs.
The Applicant has claimed that he is unable to pay that amount as he has no job and no money. That is not a ground for not making an order for costs. It is certainly a matter which the Court can consider in allowing time to pay.
The amount of $3,600.00 is certainly within the scale envisaged in the Federal Magistrate Court Rules, and I consider it a proper amount.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 1 April 2008
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