SZMBI v Minister for Immigration
[2008] FMCA 686
•12 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 686 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – applicant claimed to be a member of the Rajasthan Indoor Cricket Team – applicant claimed to be member of a particular social group comprised of farmers from Rajasthan – no Convention nexus – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 425, 474, 477 |
| Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 followed |
| Applicant: | SZMBI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 648 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 May 2008 |
| Date of Last Submission: | 12 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $3000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 648 of 2008
| SZMBI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal affirming a decision, of a delegate of the Minister, not to grant him a protection visa. The applicant claims, first, that the Tribunal denied the proper application of law to him; second, that it denied him natural justice; and, third, that it did not follow due procedure.
The applicant has told the Court that his refugee claim and his application to the Tribunal were prepared by his migration agent and he claims that his migration agent gave him bad advice. He claims that his migration agent made an error and did not tell him the correct procedure as to how to lodge his application. He claims to have paid the migration agent a fee, but the agent did not do his job properly. He has not yet made a complaint to the Migration Agents Registration Authority, but intends to do so.
The background to this matter is that the applicant arrived in Australia in April of 2007, on 20 April to be exact, as a member of the Rajasthan indoor cricket team. On 30 April 2007 he applied for a protection (Class XA) visa. He claimed to be a member of a social group constituted by farmers from Rajasthan. He claimed that, like his apparent team mates, that he did not have civil and political freedom in India, suffered from poverty and starvation, and that all of this happened because of being a member of the social group known as Farmers from Rajasthan. His original application came with a generic statement from the migration agent, Raymond F. Solaiman, who provided the same statement for all 22 of the applicants from the Rajasthan indoor cricket team.
The delegate of the Minister for Immigration and Citizenship refused the application on 19 May 2007. The delegate commented:
While the farmers from Rajasthan may constitute a particular social group that, in itself, does not automatically mean that farmers from Rajasthan face persecution for reason of being members of a particular social group.
The delegate went on to say:
I do not consider that the harm feared brings the farmers within the scope of the convention, as it is motivated by a non-convention reason. I do not find any convention ground which is the essential and significant reason for the harm feared as outlined in subdivision AL of the Migration Act for the following reasons[1].
[1] See Court Book at page 38.
The applicant then lodged an application with the Refugee Review Tribunal for review of the delegate's decision. That application was lodged on 19 June 2007. The applicant did not provide any additional documentary evidence with his application for review.
The Tribunal wrote to the applicant and invited him to attend a hearing to take place on 8 August 2007. The hearing was conducted by video conference with the Tribunal member and an interpreter in the Hindi language, in Sydney, whilst the applicant was at the Griffith Police Station. The applicant attended the hearing by video conference and gave evidence.
The Tribunal signed its decision on 8 December 2007 and handed that decision down on 27 September. A copy of the Tribunal decision record can be found at pages 55 through to 64 of the Court book. In the decision, the Tribunal sets out the applicant's claims and evidences, including the applicant's evidence at the hearing. The Tribunal noted the applicant's claim that he had left India for two reasons. First, that he had been in extreme poverty; and, second, that his brother-in-law had been killed in an accident on 17 January 2007. The applicant said that the accident had been the fault of a government bus driver, who had been drunk and had been speeding. The applicant claimed to have lodged a First Information Report with the police and, later, some people started threatening the applicant, and his father, that if they did not withdraw the FIR they would be beaten up and killed.
The Tribunal's findings and reasons can be found at pages 62 and 63 of the Court book. The Tribunal took the view that, even accepting that the applicant and his father had been threatened if they did not withdraw the First Information Report, that it did not appear that the applicant's circumstances brought him within the definition of a refugee. The Tribunal said:
This is because, as I put to him, his fear of being persecuted by the people who want him and his father to withdraw the case does not appear to bear the requisite relationship with one of the five convention reasons[2].
[2] See Court Book at page 62
The Tribunal noted that the applicant did not suggest that the failure of the police to protect him was due to any systematic discriminatory implementation of the law for a convention reason but, rather, that the bus driver had connections with the police and that the police had been protecting him. The Tribunal noted the applicant's other reason to have left India was because he had been in extreme poverty, even though he had been able to borrow 500,000 rupees against the security of his house and land. The Tribunal went on to say:
As I noted, in the statement accompanying the applicant's original application, it was suggested that the relevant convention nexus for the problems mentioned there could be found in the applicant's member of a particular social group for the purposes of the convention: "Farmers from Rajasthan"; however, as I put to the applicant, his membership of that particular social group does not appear to be the essential and significant reason for any persecution he claims to fear[3].
[3] See Court Book at page 62
The Tribunal did not find anything to suggest that the applicant's extreme poverty was the result of farmers from Rajasthan being persecuted for reason of their membership of that social group. There was nothing to suggest that Farmers from Rajasthan were treated differently from other members of Indian Society for reasons of their membership of that particular social group. The Tribunal was not satisfied that one or more of the convention reasons was the essential and significant reason for the extreme poverty which the applicant said he was suffering.
The Tribunal also noted the applicant's claim not to have civil and political freedom in India but the Tribunal referred to independent country information to the effect that the government in India generally respects the rights of its citizens and that India is a long-standing and stable democracy. Relying on the independent evidence, the Tribunal did not accept that, if the applicant were to return to India, there was a real chance that he would be denied or prevented from exercising his civil and political rights in such a way or to such an extent as to amount to persecution involving serious harm, as required by paragraph 91R1(b) of the Migration Act.
The Tribunal was not satisfied the applicant had a well-founded fear of being persecuted for a convention reason if he were to return to India, and affirmed the decision not to grant him a protection (Class XA) visa.
The applicant commenced proceedings in this Court seeking judicial review of that decision on 18 March 2008. He has set out three grounds, being: denial of proper application of law; denial of natural justice; and the Tribunal not following due procedure. As was pointed out in the outline of submissions from the lawyers for the Minister, the applicant has not particularised claims.
The Minister further submits that the grounds of review do not disclose any jurisdictional error.
The Minister also refers to the fact that that applicant appears to be out of time in commencing his application for review under the provisions of s.477 of the Migration Act, in that the decision was handed down on 27 September 2007 but the applicant did not commence proceedings until 18 March 2008; however, as was conceded by the Minister, this is a case to which the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZKKC (2007) FCAFC 105 applies. Whilst the Minister submits that the decision in SZKKC was wrongly decided, it is, however, a decision which is binding on the Federal Magistrates Court. Whilst special leave to appeal has been granted by the High Court of Australia, that is no indication that the High Court will overturn the decision of the Full Court of the Federal Court in SZKKC.
The applicant's oral submissions turned on his complaints about the inadequacy and errors by his migration agent. He said that the migration agent told him not to provide any documents to the Tribunal beforehand but to take them to the Tribunal hearing. There is nothing in the Court book to show that any documentary evidence has been provided to the Tribunal.
The applicant conceded that there was no procedural error, as far as his application was concerned, that he could see, but I consider it appropriate to consider the applicant's grounds. The first ground claims a denial of proper application of law. I do not think that this can be sustained. The Tribunal complied with its obligation under s.425 of the Migration Act. It invited the applicant to attend a hearing in plenty of time and he attended that hearing and gave evidence. There has been some disquiet exercised about hearings by video conference but there is nothing to indicate that this hearing suffered from any irregularity. The applicant lives in a country town in New South Wales and he was able to travel to the police station at Griffith, where he could give evidence by video conference.
The applicant claims a denial of natural justice by the Refugee Review Tribunal. There is no claim as to how natural justice was denied, nor can I see any denial of natural justice. The applicant has conceded that, in respect of his third ground, which was the RRT did not follow due procedure, that he could not see any procedural error. In my view there is none.
I am mindful of the fact that the applicant is not legally represented. My reading of the Tribunal decision does not disclose any arguable case of jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by ss.474(2) of the Migration Act. Consequently it is not subject to orders in the nature of certiorari or mandamus and, in my view, the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim. It is an appropriate case for an order for costs. The amount sought, namely $3000, is an appropriate figure.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 2 June 2008
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