SZMBV v Minister for Immigration
[2008] FMCA 512
•21 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 512 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – applicant not believed – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 477 |
| Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 SZMBN & SZMBP v Minister for Immigration & Anor [2008] FMCA 503 |
| Applicant: | SZMBV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG689 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2008 |
REPRESENTATION
| The Applicant appeared in person | |
| Solicitors for the Respondents: | Ms B Anniwell Australian Government Solicitor |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that the transcript of today’s proceedings be obtained and provided by the Court to the Legal Services Commission, together with a copy of these reasons for decision, for whatever action the Commission deems appropriate.
A copy of the transcript of proceedings is to be placed on the court file and be made available to parties for inspection upon request.
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 |
SYG689 of 2008
| SZMBV |
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 20 March 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 27 September 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of persecution on the basis of membership of a particular social group, as well as political and religious persecution. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 18 April 2008. I adopt as background for the purposes of this judgment paragraphs 4 through to 15 of those written submissions:
The applicant is a citizen of India who arrived in Australia on 20 April 2007 as a member of the Rajasthan Indoor Cricket team to participate in a number of cricket matches in Australia. The applicant applied for a protection (Class XA) visa on 30 April 2007.
The protection visa application contained a statement from the applicant's migration agent. The migration agent stated that a group of 22 men from India visited him at 8pm, requesting that he prepare them applications for protection visas. The migration agent's statement claimed that the applicant did not have civil and political freedom in India and that he suffered from poverty and starvation. It also stated that the applicant is a member of a particular social group of "farmers from Rajasthan."
On 19 May 2007 a delegate for the Minister refused the application. The delegate found there was no nexus between the applicant's claims of economic oppression and depravation in India, and Convention related persecution. The delegate noted the applicant was selected by the Neo International Sports Academy in India for the Rajasthan Indoor Cricket team to represent India in Australia. The delegate also cited country information indicating that India is a longstanding parliamentary democracy.
The applicant applied to the Tribunal for review of the delegate's decision on 20 June 2007.
The applicant appeared before the Tribunal on 10 August 2007[1]. At the hearing the applicant, who claims to be of Hindu religion, claimed to fear persecution from a powerful Muslim family. He claimed that his oldest brother had married a girl from that family. His family was ostracised by the community because the girl was from another caste and was also a Muslim girl. The family of the Muslim girl opposed the marriage and threatened to kill the applicant's family. The family also threatened to kill the applicant if he did not marry their younger daughter. The applicant was attacked several times.
On 10 September 2007 the Tribunal sent to the applicant an invitation to the handing down of the Tribunal's decision[2].
On 27 September 2007 the Tribunal handed down its decision. The applicant appears not to have attended the handing down[3].
On 27 September 2007 the Tribunal sent to the applicant, by registered post, the Statement of Decision and Reasons[4].
Tribunal decision
The Tribunal affirmed the decision of the delegate.
The Tribunal found the applicant's evidence to be contradictory and did not accept that he was telling the truth with regard to the persecution he claims to fear at the hands of the Muslim family. The Tribunal did not accept that his family was ostracised by their own community as a result of his elder brother's marriage nor that the applicant was threatened by a Muslim family who wanted him to marry a Muslim girl.
Regarding the applicant's claim to suffer from poverty and starvation, the Tribunal found there was nothing in the material before it to suggest that "farmers from Rajasthan" are treated differently from other members of Indian society for reason of their membership of that particular social group.
The Tribunal did not accept the applicant's claim that he suffered persecution because he did not have civil and political freedom in India. The Tribunal chose to rely on country information that indicated India is a longstanding and stable democracy. The Tribunal put this country information to the applicant[5].
[1] Affidavit of Naomi April Tondl, sworn 15 April 2008 (hereafter "Affidavit"), p4-5.
[2] Affidavit, p7-8.
[3] Affidavit, p10.
[4] Affidavit, p12-24.
[5] Affidavit, p20.7.
The show cause application asserts that the applicant was notified of the Tribunal decision on 27 September 2007. The applicant seeks an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). I directed that the matter be listed for a preliminary hearing today on the issue of the Court's jurisdiction and the extension of time request. Having regard to the Minister's response filed on 10 April 2008 and the Minister's submissions, I also directed that there be an immediate show cause hearing today. This was on the basis that there was a serious issue whether the application failed to disclose any arguable case of jurisdictional error and that if no such error was disclosed an extension of time, if required, should be refused and that if an extension of time was not required, the application should nonetheless be dismissed.
The show cause application was supported by an affidavit, which I received as a submission. I received as evidence an affidavit by Naomi April Tondl filed on 15 April 2008 and an affidavit by the applicant filed on 18 April 2008. Neither deponent was required for
cross-examination.
This case raises similar issues to the cases of applicants SZMBN & SZMBP v Minister for Immigration & Anor [2008] FMCA 503, which I dealt with on 17 April 2008. This applicant, like those two applicants, were assisted before the Tribunal by a registered migration agent,
Mr Raymond F Solaiman. This applicant also expected Mr Solaiman to file an appeal in this Court against the Tribunal decision, but it appears from the applicant's affidavit that Mr Solaiman neglected to do so. The applicant asserts that he paid Mr Solaiman $700 to prepare and lodge an appeal in this Court. For the reasons that I gave in SZMBN & SZMBP, I will direct that the transcript of today's hearing be prepared and placed on the court file and made available to the parties for inspection on request. I will also direct that a copy of the transcript and a copy of these reasons be provided by the Court to the Legal Services Commission for such action as the Commission may consider appropriate.
Two differences between this case and SZMBN & SZMBP are that this applicant attended a hearing before the Tribunal and that in this case the delay in filing the show cause application is significantly longer than in the two earlier cases. If the applicant had actually been notified of the Tribunal decision on 27 September 2007 the application lodged on 20 March 2008 would have been incompetent. The period within which I would have enjoyed a discretion to extend the time for the filing of the application would have expired. However, it is apparent from the affidavit of Naomi Tondl and the documents attached to it that the asserted date of notification of the Tribunal decision in the application must be wrong. The applicant did not attend the handing down of the Tribunal decision and could not have been notified of it on that day.
The applicant told me from the bar table that as best he can recall he received a copy of the Tribunal decision in the mail on 14 October 2007. He told me that that is the only copy of the Tribunal decision he received. On the basis of the decision of the Full Federal Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, s.477 of the Migration Act requires actual notification to the applicant to be accomplished by physical delivery of the Tribunal's reasons to the applicant personally. The Minister formally submits that decision is wrong and I note that the High Court will shortly hear an appeal against it. However, the decision is currently binding on this Court.
There is no evidence that a copy of the Tribunal decision and reasons was physically delivered to the applicant. It would follow that time has not commenced to run for the purpose of s.477 and an extension of time would not be required. If, on the other hand, the applicant was notified on 14 October 2007 for the purposes of s.477, his application would remain incompetent.
In any event, the application should be dismissed summarily as it raises no arguable case. The show cause application makes bald assertions of a denial of law to the applicant, a denial of natural justice and a failure to follow due procedure. In the absence of particulars, those grounds are meaningless. When I asked the applicant during the course of oral argument today what he thought was wrong with the Tribunal decision or the process followed by the Tribunal he declined to say anything. I accept from the affidavit of Ms Tondl that the Tribunal met its obligation to invite the applicant to a hearing and that the conduct of the hearing met the requirements of s.425. I have taken into account in that regard the decision of the delegate, which I accepted as an exhibit, exhibit R1.
Although the Tribunal made an adverse credibility finding against the applicant, which does not appear in the decision of the delegate, it is apparent from the discussion recited by the presiding member on
pages 5 through to 7 of the Tribunal decision that the applicant was put on notice at the Tribunal hearing that the credibility of his claims was in issue. The applicant was ultimately disbelieved on the basis of his own evidence to the Tribunal and country information.
Accordingly, I see no arguable case of a breach of s.424A of the Migration Act. No issue concerning s.424AA could arise as the review application to the Tribunal was filed before that section commenced operation.
I find that there is no arguable case of jurisdictional error in the Tribunal decision. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,200. The applicant did not wish to be heard on costs. I am satisfied that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party-party basis. 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 April 2008
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