SZMBH v Minister for Immigration
[2008] FMCA 642
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 642 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Migration Act 1958 (Cth), ss.91R, 477 |
| SZBJH v Minister for Immigration [2008] FCA 501 |
| Applicant: | SZMBH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 647 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 16 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Hanstein Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 647 of 2008
| SZMBH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 18 March 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a Delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 27 September 2007.
The background facts in relation to the applicant's arrival in Australia and his protection visa claims are somewhat unusual. Those facts are conveniently summarised in written submissions filed on behalf of the Minister on 29 April 2008. I adopt as background for the purposes of this judgment paragraphs 4 through to 13 of those written submissions:
The applicant is a citizen of India who arrived in Australia on April 2007 and applied for a protection (Class XA) visa on 19 May 2007. The applicant's migration agent, Mr R. Solaiman, attached a statement to the application containing the applicant's claims which were, inter alia, as follows:
(a)the applicant was denied civil and political freedom in India; and
(b)the applicant suffered from poverty and starvation as a farmer from Rajasthan.
A delegate of the Minister refused the application on 19 May 2007, finding that the applicant made "extremely vague and unsubstantiated claims" and on the basis of independent country information that was not supportive of the applicant's claims.[1]
The applicant applied to the Tribunal for review of the delegate's decision on 19 June 2007.[2] By letter dated 25 June 2007, the Tribunal wrote to the applicant inviting him to attend a hearing, stating that it was unable to make a favourable decision on the information before it.[3]
The applicant attended the hearing with the Tribunal on 3 August 2007 and gave evidence in support of his application. The applicant gave evidence that he did not know what claims were contained in the statement accompanying the application for a protection visa, stating that the statement was not read to him.[4]
Essentially, the applicant claimed that he could not return to India because he had borrowed a lot of money from his father to come to Australia with a group of players from the Rajasthan Indoor Cricket Federation, that it would be embarrassing for him to return to India and his father borrowed a large sum of money for him to travel to Australia which would be difficult for his father to repay and would result in his father losing his land. The applicant claimed that there could be some danger if he returned to India without having earned any money as his family may abandon him and he may have to commit suicide.[5]
The applicant claimed that there had been one occasion where he had been involved in a protest mounted by the Jat community. He gave evidence that nothing happened to him in connection with that protest, but something could have happened to him.[6] The applicant also claimed that his family were poor, had no right to protest and that the government in India were corrupt and gave aid only to the influential.[7]
Tribunal Decision
The Tribunal handed down its decision, affirming the decision of the delegate, on 27 September 2007.[8]
The Tribunal accepted the applicant's claims and found that applicant's honesty "commendable". However, the Tribunal found, on the evidence before it, that the essential and significant reason for the problems which the applicant feared did not bear the necessary connection with the Refugees Convention as required by s.91R(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act").[9]
In response to the applicant's claim concerning his involvement in a protest, the Tribunal found that it did not accept that there was a real chance that the applicant would be persecuted as a result of his involvement in that protest or any other protest against the government if he returned to India at the time of the decision or in the reasonably foreseeable future.[10] Further, the Tribunal did not accept, in light of independent country information before it, that if the applicant returned to India he would be denied his civil or political rights to such an extent that it would amount to persecution involving "serious harm" as required by s.91R(1)(b) of the Migration Act.[11]
The Tribunal considered the applicant's membership of a particular social group, namely "farmers from Rajasthan", and found that there was nothing in the material before it to support a finding that that group is treated differently from other members of Indian society and that the essential and significant reason why that group faced problems of poverty, ill health, hunger or starvation was not Convention based.[12]
[1] Affidavit of B. Anniwell, pp 6-13
[2] Affidavit of B. Anniwell, annexure B
[3] Affidavit of B. Anniwell, annexure C
[4] Affidavit of B. Anniwell, p 33.8
[5] Affidavit of B. Anniwell, p 34
[6] Affidavit of B. Anniwell, p 35.1
[7] Affidavit of B. Anniwell, p 35.4
[8] Affidavit of B. Anniwell, annexure F
[9] Affidavit of B. Anniwell, p 35.7
[10] Affidavit of B. Anniwell, p 36.1
[11] Affidavit of B. Anniwell, p 36.3
[12] Affidavit of B. Anniwell, 36.5
The application is supported by an affidavit filed with it which I received as a submission. I also have before me the Minister's response filed on 29 April 2008. I note in that regard the date stamp was altered from 28 April 2008. I have before me as evidence the affidavit of Brin Ellen May Anniwell made on 28 April 2008.
When this matter first came before me on 28 April 2008 it was apparent that there was an issue concerning the Court's jurisdiction. The issue arose pursuant to s.477 of the Migration Act. There was also a question of whether the application should be dismissed, summarily, as not raising an arguable case of jurisdictional error.
I dealt with the question of the statutory time limit on 30 April 2008. I declared on that day that the applicant did not require an extension of time for his show cause application on the basis that he was notified of the Tribunal decision on 3 October 2007 by post and that he has not been served personally with a copy of the Tribunal decision. I adjourned until today the issue of whether the application should be dismissed summarily as failing to disclose an arguable case of jurisdictional error.
I invited the applicant today to make oral submissions in support of his application but he declined to do so.
The show cause application sets out three grounds of review that are extremely generally expressed. The applicant asserts a denial of proper application of law, a denial of natural justice and a failure to follow due procedure. The first and second allegations are repeated in the accompanying affidavit. No particulars are provided. In the absence of particulars the allegations re meaningless.
It is apparent from the record of the Tribunal decision that the Tribunal was under some difficulty in identifying what the applicant's claims of persecution were. His problems appeared to be essentially economic ones. The Tribunal did elicit from him a statement that he had participated in a demonstration. The Tribunal member records in the decision, appearing at page 34 of the annexure to the affidavit of Ms Anniwell, that the person who had helped the applicant prepare his visa application had said that the applicant had protested against the government. The applicant said there had been one occasion. He said in October 2006 there had been an incident in which people from the Rajput community had fired shots at people from the Jat community who had been sitting in a shop. The applicant said that two of the Jats had been killed and three of them had been injured. He said that there had been a strike for a whole month in his small town and then riots had started. He said that his family had to leave their village for a month. He said the police had been doing their job but the Jats had approached the government demanding that the Rajputs responsible be arrested. He said that the killers had been arrested and the government had also paid compensation to the families of those who had been killed or injured. The applicant said that he had been involved in the protest mounted by the Jats. He said that it had been an open protest, but he had to join. He said that nothing had happened to him but something could have happened to him.
Having regard to the applicant's reference to a protest involving Jats I have considered whether there could be any arguable case of jurisdictional error in this matter based upon the recent Federal Court decision in SZBJH v Minister for Immigration [2008] FCA 501. In that case his Honour Lander J found that the Tribunal had fallen into error in failing to consider a particular social group claim based upon Punjabi Sikh Jat landowners in the terms in which that particular social group had been put forward by the applicant.
The Tribunal dealt with the demonstration issue in the following way[13]:
Finally, as I also noted, in the applicant's original application it said that as a farmer from Rajasthan he had suffered from problems including poverty, ill health, hunger and starvation. While ‘farmers from Rajasthan’ may be a particular social group in India for the purposes of the Convention, as I put to the applicant, the problems mentioned in his original application do not appear to bear the necessary connection with one of the five Convention reasons: that is, it does not appear that the problems that were mentioned are the result of the applicant being persecuted ‘for reasons of’ his membership of the particular social group of ‘farmers from Rajasthan’ or any one or more of the other Convention reasons. There is nothing in the material before me to suggest that ‘farmers from Rajasthan’ are treated differently from other members of Indian society for reasons of their membership of that particular social group. I am unable to be satisfied on the material before me that, as required by paragraph 91R(1)(a) of the Act, one or more of the five Convention reasons is the essential and significant reason for the problems including poverty, ill health, hunger and starvation which were mentioned in the applicant's original application.
[13] Affidavit of B. Anniwell, annexure F, p.36
In my view, the Tribunal considered what might have been a claim of persecution based upon membership of a particular social group in the terms that the claim was made by or on behalf of the applicant. In any event, as the applicant had stated to the Tribunal, and as is noted by the Tribunal in its reasons appearing on page 35 in the annexure to the affidavit of Ms Anniwell, the applicant suffered no harm during or following the demonstration. In the circumstances, the Tribunal reasonably and properly concluded there was not a real chance that the applicant would be persecuted as a result of his involvement in this or any other protest against the government if he returns to India now or in the reasonably foreseeable future. That conclusion would follow whether the applicant's participation in the demonstration supported a claim of political persecution or persecution based on membership of a particular social group.
In the hearing before me on 30 April 2008 the applicant made allegations against his former migration agent. I have referred those allegations to the Law Society of New South Wales. Whatever may be the truth of those allegations they do not support any claim of jurisdictional error by the Tribunal. I should add that no claim has been made of fraud by the applicant's former migration agent against the Tribunal. The issue raised by the applicant on 30 April 2008 concerned an allegation of the agent unlawfully providing professional legal services for the purposes of these present proceedings.
The applicant did allege that his former agent had neglected to inform him and others in a timely way of the outcome of the review application before the Tribunal. Even if that allegation is true it would not support an assertion of agent fraud amounting to jurisdictional error. That is not least because the asserted failure on the part of the agent followed the decision of the Tribunal.
I find that there is no arguable case of jurisdictional error by the Tribunal. I will dismiss the application.
The application, having been dismissed, costs should follow the event. The Minister seeks costs in the sum of $2,200. Scale costs in this instance would be $2,500.
The applicant indicated an inability to pay but, as has repeatedly been stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2008
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