SZLSK v Minister for Immigration
[2008] FMCA 295
•11 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 295 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 65; 65(1); 65(1)(b); 91R; 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481; 1996 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZLSK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3725 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 March 2008 |
| Date of last submission: | 11 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2008 |
REPRESENTATION
| Applicant in person with Gujarati interpreter |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3725 of 2007
| SZLSK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 October 2007 and handed down on 8 November 2007.
The Applicant claims to be from India where he previously operated as a stock broker (“the Applicant”).
The Applicant arrived in Australia on 5 April 2007 having departed legally from Mumbai Airport on a passport issued in his own name and a visa issued on 30 January 2007.
On 17 May 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by people who believed he owed them money in India who had been clients of his stock broking business. The Applicant claimed his previous clients hired people to come after him and kidnap or kill him when he failed to provide them with profits to which they believed they were entitled. The Applicant claimed that, even after moving to a new area, he was “given the same trouble day and night”.
On 25 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant’s fear is neither well-founded nor Convention-related and therefore the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 19 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 19 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 30 July 2007 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone and invited the Applicant to attend a hearing on 29 August 2007 to give oral evidence and present arguments. On 29 August 2007, the Applicant appeared before the Tribunal by video conference and gave oral evidence.
The Tribunal explored with the Applicant his allegations of harassment and threats suffered by him at the hands of his creditors and his fear of harm if he were to return to India. The Tribunal explored with the Applicant whether he had approached the authorities and the police and noted the Applicant’s response that he had done so.
The Tribunal put to the Applicant on more than one occasion that it did not appear to the Tribunal that the Applicant’s fear of being persecuted by his creditors was for a Convention-related reason. The Tribunal noted that each time it put this concern to the Applicant, the Applicant responded that he understood. The Tribunal stated the following:
“The Applicant repeated that he feared for his life. I explained to him that, as we had discussed, this was not enough. His fear had to be for one of the five specific reasons set out in the Refugees Convention but from what he had said he feared being persecuted by the people to whom he owed money. The Applicant said he had been trading, buying and selling, but he had not been able to get money for the shares which he had bought so he had not been able to pay these other people.”
The Tribunal accepted that the Applicant was truthful about allegations of harm and his continued fear of harm from people to whom he owed money. The Tribunal accepted the Applicant’s evidence that his creditors were pursuing him because he owed them money. However, the Tribunal found that there was “no suggestion” that the Applicant’s creditors were singling him out for a Convention-related reason.
The Tribunal also found that there was “no suggestion” that the authorities had failed to protect the Applicant for any Convention-related reason.
On the evidence before it, the Tribunal did not accept that that there was a real chance that the Applicant would be persecuted for a Convention-related reason if he were to return to India now or in the reasonable foreseeable future.
The Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant appeared unrepresented before this Court, although had the assistance of a Gujarati interpreter. The Applicant confirmed that he relied on the grounds identified in his application filed on 4 December 2007.
The grounds of the application are expressed to be as follows:
“1. That the tribunal’s decision was in breach of section 424A (1) of the Migration Act 1958 [Cth]
Particulars:
(a) The tribunal did not disclose the information in accordance with s.424A(1)
2. That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error.
3. That the tribunal made denial of natural justice. Because the Tribunal was wrong in concluding that the applicant’s claims were not convention related,such as significant financial hardship.”
Each of the grounds was interpreted for the Applicant’s benefit and he was invited to make submissions in support of each of the grounds and in support of his application generally.
The Applicant stated that he had documents in India that his family were seeking to obtain. The Court explained to the Applicant that if these documents were not documents that were placed before the Tribunal by him in support of his review application, then they were not documents that were relevant to the determination by this Court of whether or not the Tribunal’s decision was affected by an error going to its jurisdiction. The Applicant confirmed that he had not given the Tribunal any documents in support of his review. The Court explained again that, in those circumstances, it cannot be a legal mistake on the part of the Tribunal for it not to consider documents he did not provide to it. Otherwise, the Applicant made no further submission.
Ground 1 – “That the tribunal’s decision was in breach of section 424A (1) of the Migration Act 1958 [Cth].”
Ground 1 is not supported by particulars and is a bare assertion of error.
There was no information to which the Tribunal had regard in affirming the decision under review that had not been given to the Tribunal by the Applicant for the purposes of his review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
The Tribunal accepted the Applicant’s evidence of the difficulties he had suffered at the hands of his creditors. The Tribunal concluded that the harm suffered by the Applicant was not Convention-related. That conclusion is a legal conclusion arrived at by the Tribunal, having applied the correct law to the facts as it found them to be.
Accordingly, there was no enlivenment of s.424A(1) of the Act. Ground 1 is rejected.
Ground 2 – “That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error.”
Ground 2 is not supported by particulars and makes bare assertions of error.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal made factual findings in accordance with the Applicant’s evidence. Those findings were plainly open to the Tribunal on the evidence and material before it.
The Tribunal considered the relevant law and applied it correctly to the facts as it found them to be in reaching its conclusion that it was not satisfied that the Applicant met the relevant criteria for being a refugee, referred to in s.36 and s.65 of the Act. Pursuant to s.65(1)(b) of the Act, if the Tribunal is not so satisfied, it must refuse to grant the Applicant a protection visa.
A fair reading of the Tribunal decision does not disclose any lack of procedural fairness. The Tribunal invited the Applicant to come to a hearing. The Tribunal discussed the Applicant’s claims with him and explained to the Applicant the difficulties the Applicant faced in satisfying the criteria for being a refugee.
The Tribunal noted that the Applicant had wished to produce documents from India which would confirm what the Applicant said about his debts. However, the Tribunal informed the Applicant that such documents would not assist him as they did not assist in identifying any Convention-related reason for the harm he had suffered. In any event, the Tribunal accepted the Applicant’s evidence regarding his debts.
The Tribunal complied with the statutory regime in making its decision, including the conduct of its review.
Accordingly, ground 2 is rejected.
Ground 3 – “That the tribunal made denial of natural justice. Because the Tribunal was wrong in concluding that the applicant’s claims were not convention related, such as significant financial hardship.”
Ground 3 is also unsupported by particulars. To the extent that ground 3 alleges a denial of natural justice, for the reasons given above in ground 2, such an allegation cannot be made out. Otherwise, ground 3 appears to be a disagreement with the legal conclusions of the Tribunal and seeks merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
Accordingly, ground 3 is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 11 March 2008
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