SZLTS v Minister for Immigration - [2008] FMCA 1140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1140

MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – whether relevant fraud by agent – no jurisdictional error established – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.91R(1)(b), 91R(1)(c), 424A, 424A(3)(a), 424A(3)(b)

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64
SZHVM v Minister for Immigration & Citizenship [2008] FCA 600

First Applicant:

SZLTS

Second Applicant:

SZLTT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3850 of 2007

Judgment of:

Smith FM

Hearing date:

4 August 2008

Delivered at:

Sydney

Delivered on:

4 August 2008

REPRESENTATION

Counsel for the Applicant:

Applicant husband in person

Counsel for the First Respondent:

Mr P Snell

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3850 of 2007

SZLTS

First Applicant

SZLTT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who came to Australia in March 2007. On 11 May 2007, they lodged an application for protection visas against return to India. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”.
The application was lodged by a migration agent, Mr Raymond Solaiman. It gave the applicant’s reasons for leaving India as:
Applicant claimed persecution in the hands of extortionists and the state authority refused to protect them for his political opinion. We will make detailed submission sometime later and we request that he be invited for interview.
Important information in the form was omitted, and at no time did the applicant or his agent forward to the Department of Immigration, nor subsequently to the Tribunal, any further written details or support for the visa application.
A delegate refused the application on 28 May 2007. The delegate referred to the absence of details about the applicant’s refugee claim, and said that he was not able to make a finding about it.
An application for review by the Tribunal was filed on 20 June 2007. It did not appoint an agent or advisor, and requested correspondence to be sent directly to the applicant at the Gol Gol Hotel. I note that the facsimile application for review indicates that it has come from a machine referred to as “RSA”.
An invitation to the applicants to attend a hearing was sent to them, and the applicant attended a hearing on 20 August 2007. At the hearing, he told the Tribunal that he had been working in his father’s hardware shop in Ahmedabad. He claimed that he had been threatened by the opposite people party in elections in March 2006. He had received telephone calls threatening to burn down his house, and people hit him with hot, burning wood leaving a scar on his leg. He said that he stopped going out of his house, and fled from one village to another. He said that the police were asking for a bribe, and he could not pay it. He told the Tribunal he was a member of a political party called “Hindu” from which “Modi” was elected. However, he could not give the name of that party.
The Tribunal put its concerns to the applicant, including that his claims had not been told to the Department, and the implausibility that he would not know that “Modi” was the chief minister of Gujarat State and a leader of the BJP party. The Tribunal also put these concerns to the applicant in writing, and invited his comments, but there was no response.
In its decision handed down on 20 November 2007, the Tribunal affirmed the delegate’s decision. It pointed to the two matters which it had raised with the applicant, in support of its conclusion that he was not a witness of truth in relation to the claims made. The Tribunal did not accept that he had been a member of any political party, nor that he had been threatened or harmed for his political opinions, nor that he had been threatened with having his house burnt down, nor that he had gone into hiding and been denied police protection.
The Tribunal considered the situation of the applicant merely as a Hindu if he returned to India, and was not satisfied that there was a real chance that he and his wife would suffer Convention‑related harm if they returned to India.
The applicants now ask the Court to set aside the Tribunal’s decision, and to remit the matter for further hearing by the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants are refugees or should be given permission to stay in Australia.
The original application filed in the Court has three grounds. These allege breach of s.424A of the Migration Act 1958 (Cth), an error of law, and lack of procedural fairness, and denial of natural justice. No particulars of these contentions are given in the application, and I cannot identify any meaningful argument which could establish these errors.
The third ground that “the tribunal was wrong in concluding that the applicant’s claims were not convention‑related, such as significant economic hardship”, appears entirely unrelated to how the Tribunal decided the matter.
The applicant’s use of precedents having no bearing on his case is again shown in his amended application, which was filed at a show‑cause hearing which I held on 18 March 2008. Its first ground is that the Tribunal misapplied s.91R(1)(b) and (c), in relation to its assessment of the nature of the persecution suffered by the applicant. However, this contention, as well as being unexplained, has no apparent relationship to how the Tribunal decided the case. This turned on its rejection of his claim to have suffered harm of any sort for a Convention reason.
Similarly, the contention in the amended application that there was a breach of s.424A has no relevance to the matter, since the information relied upon by the Tribunal was given to the Tribunal by the applicant or was general information (see s.424A(3)(a) and (b)). The Tribunal’s reliance on the fact that the applicant had not presented his refugee claims to the Department did not give rise to any obligations under s.424A, on the view of that provision taken in the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609. In any event, the applicant was invited in writing to comment on the possible finding by the Tribunal that his claims made to it at the hearing were a late invention.
The third ground in the amended application repeats a garbled ground which I have seen in many matters, and which is very difficult to comprehend. It appears to allege error by the Tribunal in findings concerning relocation. However, in this case the Tribunal made no such finding, and was not obliged to consider tests under relocation principles.
The lack of merits in the application and amended application would normally have caused me to have dismissed the application at a show‑cause hearing under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), which was held on 18 March 2008. However, the applicant presented to me on that occasion a typed submission which criticised the applicant’s migration agent for inadequately preparing the original visa application. It claimed:
due to his negligence our claim was not described properly nothing was there what I had told to him as a result department took decision against us. We were disappointed.
It also made unclear criticisms of the agent because he “spoilt my case”, and “I was cheated by migration agent”.
I therefore decided to adjourn the matter for a final hearing, which was set down for today. I made orders requiring the applicants to file and serve affidavits setting out in detail their allegations concerning the conduct of their migration agent, so as to allow the first respondent to consider what evidence it should lead, including from that person. However, no such affidavits have been filed by the applicants, and their allegations remain inadequately presented to the Court.
In my opinion, the applicants have not established any facts which would satisfy the principles identified in the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64. Those principles have been recently addressed in a number of cases, including a discussion by Middleton J in SZHVM v Minister for Immigration & Citizenship [2008] FCA 600. As his Honour points out, the principles do not assist an applicant who has suffered only from the negligence or carelessness of his agent in presenting the applicant’s claims. It is necessary to identify “fraud” by the agent, and also that it had a relevant immediate effect on the fairness of the Tribunal’s decision‑making process.
Neither of these matters is established on the evidence before me. In particular, even if there was serious misconduct by the agent in relation to the presentation of the visa application, the applicants were afforded by the procedures followed by the Tribunal the fullest opportunity to rectify any inadequacies, including by appropriately responding with evidence and submissions to the Tribunal’s concerns about recent invention. The applicants did not take up that opportunity in a manner that was able to persuade the Tribunal in its assessment of the evidence.
For all the above reasons, I am not persuaded that the applicants have established any jurisdictional error affecting this decision of the Tribunal. I must therefore dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 August 2008