SZLUI v Minister for Immigration and Citizenship
[2008] FCA 1318
•20 August 2008
FEDERAL COURT OF AUSTRALIA
SZLUI v Minister for Immigration and Citizenship
[2008] FCA 1318SZLUI and SZLUJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 862 OF 2008
RARES J
20 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 862 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLUI
First AppellantSZLUJ
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
20 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent’s costs fixed in the sum of $1,800.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 862 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLUI
First AppellantSZLUJ
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
20 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from a decision of the Federal Magistrates Court refusing the appellants’ claim for constitutional writ relief against a decision of the Refugee Review Tribunal to affirm a decision of the delegate of the Minister not to grant the appellants protection visas: SZLUI v Minister for Immigration and Citizenship [2008] FMCA 843. When the appeal was called on this morning, only the male appellant appeared. He told me that his wife, the female appellant, was at home and that he was representing her.
The appellants are citizens of India who arrived in Australia in March 2007 and applied for protection visas in May 2007. The husband alone made a claim for protection as a refugee and his wife applied as a member of his family unit. The delegate refused to grant the visas on 28 May 2007 and they applied to the tribunal for a review of that decision.
THE DELEGATE’S DECISION
The husband’s application for a protection visa claim was prepared with the assistance of a migration agent. It stated no more than this in answer to the question, why he left India:
“Applicant claimed persecution in the hands of extortionists and the state authority refused to protect them for his political opinion. We will make detailed submissions some time later and we request that he be invited for interview [sic].”
No other details were provided of the claim. Unsurprisingly, the delegate observed that the husband had failed to provide any clarifying details for his claim and therefore was unable to make any finding as to the basis on which a protection visa might conceivably be granted.
THE PROCEEDINGS IN THE TRIBUNAL
The appellants were invited to a hearing by the tribunal. They appeared before it and gave evidence. The husband told the tribunal that he had one child who lived in India with his mother and that he had come to Australia because he had spare money with him and “… bad people were giving him problems and threatening to kidnap him and his child and wanted money from him.”
He told the tribunal that in 2003 he had been threatened by “some people” about his prior girlfriend but he decided not to marry her because she was apparently involved with another person. When the tribunal enquired of the appellant husband, why he did not wish to return to India, he told it that he had feared for his life. He claimed that until he came to Australia he worked in an agency selling a particular kind of marble and had a factory that made submersible pumps. He told the tribunal that he was first threatened in late February 2006 by unknown people who rang him on the telephone and asked for money. These people, he claimed, would ring him at his business at about 6 o’clock in the evening continuously for four to five months. He said that he complained to the police but that they asked him for money. He then claimed that the people would ring him both at home and at work and he did not pay any money. He told the tribunal that nothing else happened to him, except that these people threatened that they would kill him. He claimed that his parents told him to run away to his maternal uncle and that uncle’s village. He told the tribunal that he came to Australia because of this fear and went nowhere else in India because, he claimed, the police were the same everywhere and did not protect citizens. When asked what he expected the Indian police to do, the husband said that the police were there to protect civilians and he could not go back to India because of his fear for his life.
Following the hearing, the tribunal sent to the husband and wife a letter pursuant to s 424A of the Migration Act 1958 (Cth) inviting them to comment on information which the tribunal said might be the reason or part of the reason for affirming the decision under review. The tribunal referred to a report of the United Kingdom Home Office in respect of India in 2007, details of which it set out at length in its letter. It said that the report suggested that if a Hindu citizen did not receive police assistance because of bribery, there were legal mechanisms in place for action to be taken against the police who requested the bribe. The tribunal also informed the appellants that if it formed the view that India was a parliamentary democracy, which generally respected the rights of citizens, where there was freedom of political expression and where officials who exceeded their powers could be and were investigated and punished, it might form the view that a Hindu from Gujarat was able to return to India and was not entitled to a protection visa. Despite being invited to comment on the tribunal’s letter, the appellants failed to respond.
In the decision record detailing its findings and reasons, the tribunal considered whether a Refugees Convention nexus existed between the claims made by the husband and the harm he feared. It noted that where a State fails to protect a person from persecution by non-State agents, an entitlement to protection from a third State may arise. The tribunal referred to Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 and Minister for Immigration and Multicultural Affairs v Respondents S152 2003 (2004) 222 CLR 1, noting that what was required was State toleration or condonation of the persecution in question in systematic discriminatory implementation of the law. In addition, the tribunal considered that a State could not be expected to provide an absolute guarantee of protection but was obliged to take reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of a reasonably effective and impartial police force and judicial system. I am unable to see any error in the application of those tests.
The tribunal said that even if it accepted that the husband left India because he was threatened when he refused to pay money to persons unknown whilst running his businesses, it found that the evidence did not suggest he feared harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion. It found that there was no evidence that the husband had any political opinion or imputed political opinion. It did find that he was a member of a particular social group of “Indian businessmen”. However, it also found that there was no evidence to suggest that the husband suffered any harm for membership of that particular social group or any other group. The tribunal found that the husband did not suffer any harm when he had been threatened in relation to his previous proposed marriage in 2003. It was satisfied that he did not leave India fearing Convention-related persecution.
The tribunal then turned to consider whether, if returned to India, the husband might suffer persecution or harm in the foreseeable future. It concluded that Hindus were not singled out by corrupt police or authorities and that where there were complaints of corruption in the Indian police force, those complaints were investigated and persons could be charged for corrupt conduct. The tribunal found that if any threats or attacks were to be perpetrated against the husband or his wife for any Convention-related reason, that there was a functioning police force and an independent judicial system where members of the judiciary were accountable for their decisions on appeal. It found that there was no independent evidence to support any claim that the husband or his wife would not obtain State protection in India.
The tribunal concluded that it was not satisfied that the appellants had a well-founded fear of Convention-based persecution on their return to India. The tribunal found that the appellants were not persons to whom Australia had protection obligations under the Refugees Convention and accordingly, affirmed the decision of the delegate.
THE PROCEEDINGS BEFORE THE TRIAL JUDGE
The appellants applied using a boilerplate form of application to the Federal Magistrates Court. The grounds of that application were that the tribunal allegedly:
(1) denied proper application of law to the applicant;
(2) denied natural justice to the applicant;
(3) did not follow due procedure.
These meaningless grounds were not particularised, developed or refined, despite the husband acknowledging to the trial judge that he had been allocated an adviser from the legal assistance panel and he had received written advice. His Honour reviewed the procedures that the tribunal applied to the determination of the appellants’ case and was satisfied that no jurisdictional error had been demonstrated. I agree.
THIS APPEAL
The notice of appeal to this court is another boilerplate document with no particularised or relevant grounds. First, it asserted that the Federal Magistrates Court erred in law in determining whether the matter was reviewable in the Federal Magistrates Court. That is nonsense. If it were correct, it would mean that this appeal was also misconceived.
The second ground asserted the trial judge also erred in law in determining that the Federal Magistrates Court did not have jurisdiction to review the matter. That is also nonsense. His Honour determined that there was jurisdiction, reviewed the matter and dismissed the application in accordance with his obligation to do so in the circumstances.
The third ground is that the trial judge failed to determine whether there was any jurisdictional error in the purported decision of the delegate. His Honour did not have jurisdiction to determine whether there was a jurisdictional error in the decision of the delegate because the decision of the tribunal, on reviewing the delegate’s decision, superseded it pursuant to s 415(3) of the Migration Act. Again, the ground is nonsense.
The fourth ground is that the trial judge erred in law in determining that the application was an abuse of process. Although his Honour did not make such determination, it is plain from the lack of any basis on which error might be suggested, that the proceedings below and these proceedings are properly characterised as an abuse of process because they are foredoomed to fail. When I asked the husband why the trial judge had made an error, he said that he wanted the tribunal to hear his claim, again, because it had not been heard properly in the first place. When I asked him why he said that, he said that he could not say anything. Having reviewed the material myself, it is apparent that he could not say anything about error before the tribunal because there was nothing to say.
The last ground in the notice of appeal was, “I will provide more detail later.” No details were ever provided and no attempt to articulate a claim was made either before his Honour in the court below or before me.
In my opinion, the appeal must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 26 August 2008
The First Appellant: Appeared in person and represented the Second Appellant Solicitor for the First Respondent: Mr P Snell, Sparke Helmore
Date of Hearing: 20 August 2008 Date of Judgment: 20 August 2008
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