SZLUI & Anor v Minister for Immigration
[2008] FMCA 843
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 843 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZLUI” and “SZLUJ”. |
| Migration Act 1958 (Cth) ss.422B(1), 424A, 425A, 425(1), 441A(4) |
| Applicants: | SZLUI & SZLUJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3915 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Gujarati interpreter. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 20 December 2007 is dismissed.
I order that the first and second applicant pay the first respondent costs and disbursements fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3915 of 2007
| SZLUI |
First Applicant
| SZLUJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Settled from ex tempore reasons)
The applicant was born on 23 January 1978 in Gujarat, India, and he arrived in Australia with his spouse, the second named applicant, as a holder of a Visitor’s visa granted on 20 March 2007. I note that the second applicant, who does not appear today, has not made any separate claims and her own Protection (Class XA) visa application depends on that of her husband.
The applicant in his Protection (Class XA) visa application indicates that it was completed by his migration agent, Mr Raymond Solaiman, and that the documentation before the Court does not provide any information in relation to the applicant’s educational background, his former employment or where he resided in India other than from the State of Gujarat.
The applicant claims he fears persecution due to his political opinion and that the State authorities refused to protect him. These claims were not substantially extended at the Tribunal hearing.
The applicant arrived in Australia on 28 March 2007 and applied to the Department of Immigration & Citizenship for a Protection visa on 11 May 2007. A delegate of the Minister decided to refuse to grant the visa on 28 May 2007, and the applicant applied to the Refugee Review Tribunal on 20 June 2007 for a review of the delegate’s decision. It is the decision of Lilly Mojsin, RRT reference number 071514985, signed on 30 October 2007, which is the subject of review in this Court.
The respondent’s solicitors prepared a Court Book (“CB”) marked Exhibit “A” and is the only evidence before the Court. At the first court date directions hearing the applicant indicated to the Court that he wished to participate in the scheme that provides unrepresented applicants in refugee matters with independent legal advice on the prospects of success of their appeals. The Court file indicates that the applicant was allocated a panel adviser the applicant acknowledged today that he received written advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 2 April 2008. I note that nothing has been filed. The applicant was also requested to file short written submissions in support of his application, and any authorities that he relied upon. Again, there was no response to this request.
The Tribunal’s hearing was held on 20 August 2007 and the applicant provided the Tribunal with the following information: that he has one child who lives in India with his mother and that he lived with his parents prior to coming to Australia. The applicant also provided the Tribunal with details of his current address. The applicant indicated that he had trouble with business associates who were attempting to extort money from him, and threatened to kidnap him in an effort to extract that money. He claimed that he was threatened earlier in 2003 while planning to marry a woman, but he received information indicating that person was involved with someone else and that marriage did not go ahead.
There was discussion in respect to the reasons why the applicant feared returning to India. The applicant indicated that there were a number of unknown people who made contact with him in an attempt to extort money. This appears to be predominantly involved with his business activities. The applicant claimed that he did not receive any assistance from the police.
The Tribunal found that there was no evidence that he had been denied state protection for a Convention reason. Further, they found that the applicant’s claims were unrelated to Convention reasons. Rather, the Tribunal found that they were related to business activities with which the applicant was involved and proceeded to affirm the delegate’s decision.
The applicant filed proceedings in this Court on 20 December 2007 seeking judicial review of the Tribunal’s decision. The three grounds of review include:
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.
None of these grounds are particularised and are not directed to any specific error made by the Tribunal, nor has the applicant attempted to prepare written or oral submissions to support any of these claims.
Part.7, Division 4 of the Migration Act 1958 (Cth) (“the Act”) contains provisions for the conduct of review of decisions by the Tribunal and s.422B(1) states that:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
S.425(1) of the Act states that:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Court Book (“CB”) at page 46 contains a letter forwarded to the applicant on 19 June 2007 inviting the applicant to appear. Section 425A of the Act states:
Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
The letter contained in the Court Book clearly states that the applicant was to attend a hearing on 20 August 2007 at 9.30am on level 11, 83 Clarence Street, Sydney and that he was to be assisted by a Gujarati interpreter.
S.441A(4) of the Act states:
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
The letter contained in the Court Book at page 46 contains a handwritten note that indicates that the letter was forwarded on 19 July 2007 and is initialled “GM”. Next to the letter is a registered mail reference number RP35201158 indicating that the Tribunal recorded the document. The applicant received the letter and wrote to the Tribunal indicating his intention to attend and completed the form which contained questions concerning the conduct of the hearing.
I am satisfied that the Tribunal complied with the necessary requirements which enabled the applicant to attend the hearing and provided him with the opportunity to advise the Tribunal of the details of his claim. As the application is devoid of particulars and there has been no attempt to identify what procedures have not been followed, it is not possible to indicate that the Tribunal has not followed the procedures required on the convening and invitation of the applicant to the Tribunal to conduct the hearing.
Three days after the completion of the hearing, the Tribunal forwarded a letter under the provisions of s.424A of the Act raising with the applicant various issues that have come into question as a result of his evidence at the Tribunal hearing. The applicant was invited to respond to that letter but failed to do so.
I am satisfied that each requirement contained in Part 7, Division 4 has been complied with and the claims made by the applicant in his three brief grounds of review do not identify an error on behalf of the Tribunal.
As the applicant is self represented it places an additional burden on the Court to review the contents of the Court Book and the decision to determine whether any other jurisdictional error exists in the decision that has not been raised or identified by the applicant in his application. On a fair reading of that document I am satisfied that no other error exists.
In the circumstances the application should be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 24 June 2008
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