SZMIS v Minister for Immigration
[2008] FMCA 1572
•13 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1572 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424AA, 424A, 425 |
| “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 |
| Applicant: | SZMIS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1416 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 13 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1416 of 2008
| SZMIS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 24 April 2008 and handed down on 15 May 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in October 2007 and in November 2007 applied for a protection visa. In a statement provided to the Department dated 13 December 2007 he claimed to have been an “active social worker” in the BJP political party and to have been active in social gatherings and meetings. He claimed that the Muslim opposition party did not like his work and was also "treating me to kill me" (sic). He claimed that while at a bus stop on 12 August 2003 he and his wife were attacked and both injured by the “opposition party’s Muslim people”. He claimed that he reported the incident to the police and registered the case and that the incident was publicised in a local newspaper. He also claimed that although he reported the complaint, he did not get police protection and that he was repeatedly threatened by “them” to withdraw his case or they would kill him.
The applicant claimed that he was scared because of ongoing Hindu-Muslim communal riots, that although he had moved “they” had searched for him, found him and threatened to kill him. Subsequently he applied for an Australia visa. He claimed his enemies were troubling and attacking his family members.
The application was refused by a delegate of the first respondent. The delegate referred to the vagueness and lack of detail in the applicant's claims, the absence of independent country information to support such claims and the availability of effective state protection.
The applicant sought review by the Tribunal. The Tribunal wrote to the applicant by letter dated 8 February 2008 at the address for correspondence provided in his application for review, inviting him to attend a Tribunal hearing on 18 March 2008. The applicant responded to the hearing invitation. He attended the Tribunal hearing. He also provided the Tribunal with copies of documents, including a copy of the first information report in relation to the event of 12 August 2003 and a copy of an untranslated newspaper article.
In its reasons for decision the Tribunal described to the applicant's claims in connection with the protection visa application. It also set out in detail the claims made by the applicant at the Tribunal hearing, in relation to the incident on 12 August 2003. It discussed the first information report and the newspaper article and also the claim that the applicant had found out that one of the five people who had attacked him had had a relationship with his spouse and that due to this relationship they were trying to kill him. The applicant confirmed to the Tribunal that he was Hindu and his attackers were Muslim. The Tribunal also recorded that it put to the applicant concerns in relation to aspects of his evidence, in particular the issue of whether there was a Convention nexus to his claim and the availability of state protection.
In its findings and reasons the Tribunal accepted that the incident the applicant claimed had happened at a bus stop on 12 August 2003 occurred as described by him at the hearing. However it observed that as described it was a fight between the applicant and the owners of a jeep used for passengers, as the applicant wanted his spouse to use the bus and not the jeep to get to her father's home. The Tribunal accepted that there may have been some further threats after the incident. However, on his evidence he had lodged a first information report and the matter was settled a month later. The Tribunal recorded that while the applicant claimed his attackers harassed him into settling after he moved from his home there were no further direct threats.
The Tribunal also recorded that the applicant’s concerns at the hearing about the period after this incident were not with the people involved, other than for the spouse's lover. The applicant’s concern about this person was in relation to his involvement with his spouse and their claimed threats and plans. The Tribunal found that the incident was a criminal matter even though the applicant was a Hindu and the owners of the jeep were Muslim, consistent with the applicant's statement at the hearing that the incident happened because he had an angry conversation with them at the bus stop.
The Tribunal addressed the claims in the original application that the applicant was involved in the BJP, was active in social gatherings and that the opposition party threatened to kill him during that period as they did not like his work. However it recorded that at the hearing the applicant had stated that he became interested in politics from 2007, confirmed that the attack in 2003 could not have happened for political reasons and that he had not received any direct threats after he had moved. The Tribunal found that this indicated that the applicant had not received any threats because of his interest in politics and for these reasons it was not satisfied that he was persecuted in India because of his political opinion.
The Tribunal found that the incident on 12 August 2003 and subsequent threats immediately thereafter were not made for a Convention reason and that even if the incident was exacerbated due to the applicant being a Hindu and the attackers being Muslims, this was not an essential and significant reason for persecution pursuant to s.91R of the Migration Act 1958 (Cth). For the reasons given, the Tribunal found there was not a real chance that the applicant would suffer persecution for a Convention reason arising out of the 2003 incident or the harassment which followed if he returned to India in the foreseeable future.
The Tribunal then considered other aspects of the applicant's claims. First, it addressed his claim about threats arising from his spouse's relationship with a Muslim and his claim that they wanted him to divorce his spouse so that she could marry her Muslim lover. The Tribunal found the applicant's claims that his spouse and her lover were planning to kill him and had threatened him were vague and unsubstantiated. It referred to the limited evidence of a telephone call a year after they moved to another town in 2005, a subsequent overheard telephone call when he heard the spouse giving her lover her address; and an hour-long telephone call in 2007 on his mobile phone. He had claimed that while living at in the place they had moved to in 2005, his spouse's lover used to come to the house, but he did not claim that he had been directly threatened or attacked by that person. Nothing happened when they were living in the place they moved to in 2007. The applicant confirmed at the hearing that he had not received any direct threats. He felt that he would be attacked based on instinct and assumption. The Tribunal noted that this assumption did not prevent the applicant from living with his spouse and children until he left for Australia in October 2007.
The Tribunal was not satisfied on the evidence before it that the applicant's spouse and her lover were planning to kill him. It also noted that the threats made by the applicant’s spouse were in relation to her asking him for a divorce, that she would commit suicide and that he would then go to gaol. It found that the threats arose out of the breakdown of the marriage and were a personal matter. They were not that the applicant's spouse would harm him, but rather that she would harm herself. For these reasons the threats were found not to be made for a Convention reason. The applicant's claims that if he returned his spouse would constantly harass him for a divorce and that he would not get any peace were found to be vague and lacking in detail and not such as to amount to serious harm.
Finally the Tribunal addressed the applicant's claims in his statement that he was involved in BJP social gatherings and that the opposition party threatened to kill him. It found this claim to be vague and "substantiated" (sic). As discussed further below, this is clearly intended to be a finding that the claim was “unsubstantiated”, as is apparent from the Tribunal's subsequent discussion of this claim. The applicant stated at the hearing that he became interested in politics from 2007 and that after he moved in 2005 he did not receive any direct threats. The Tribunal found that this indicated that he was not threatened due to his interest in politics. The Tribunal was not satisfied there was a real chance that the applicant would be persecuted by reason of his political opinion if he returned to India in the reasonably foreseeable future.
Before reaching its ultimate conclusion the Tribunal referred to the fact that at the hearing the applicant stated that he did not plan to be alive if he returned to India, suggesting that he may commit suicide. The Tribunal observed that this suggestion was made at the end of the hearing, after it had discussed various issues arising from the applicant's claims and that during the hearing the applicant had answered the Tribunal's questions clearly and relevantly and that there was nothing to suggest that he was not competent to give evidence.
The Tribunal found no plausible evidence that the applicant had suffered persecution in India for any Convention reason and that the evidence did not establish that there was a real chance that that would occur either now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
The applicant sought review by application filed in this Court on 3 June 2008. He filed an amended application on 6 August 2008. He did not file written submissions and made no oral submissions, except to seek an adjournment in order to file a further application or to provide further documents. That application was refused in light of the time that had been available and the lack of clarification as to how any further documents would assist the Court to determine whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.
The applicant expressed some indication that he was unfamiliar with the amended application (although he did not elaborate on this and later stated that he had some assistance). I gave him the opportunity to raise orally any other ground he wished to rely on and informed him that the Court would also consider the grounds in the original application. The applicant did not raise any further grounds. All the grounds in his application and amended application were addressed in submissions for the first respondent and have been considered by the Court. The applicant had nothing to say in response to the oral submissions for the first respondent.
It is convenient to consider first the grounds in the original application. The first is an unparticularised contention that there was an error of law and jurisdictional error. This ground is meaningless in the absence of particularisation and does not on its face establish jurisdictional error.
The second ground has two parts. It is that the Tribunal failed to follow proper procedure at the time of the hearing and that prior to making the final decision it: “failed to provide him with an opportunity to respond to any adverse information, in accordance with s.424A(1) of the Migration Act 1958 (Cth).”
I have considered whether the material before the Court indicates any failure by the Tribunal to follow the procedures under the Migration Act and Regulations in relation to the conduct of the review, notwithstanding the absence of particulars or submissions. There is, however, nothing in the material before the Court to establish that the Tribunal failed to comply with its statutory obligations, in particular its obligation to invite the applicant to a hearing and to meet its obligations under s.425, consistent with SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152, to put dispositive issues to the applicant. I note in that respect that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
There is nothing on the face of the material before the Court to suggest that the Tribunal failed to meet its obligations in relation to the invitation of 8 February 2008 to a hearing on 18 March 2008. The invitation letter contained the requisite information in relation to time, date and place of the hearing and advised the applicant of the options available to the Tribunal if he did not appear. In response to the hearing invitation the applicant indicated that he wished to attend the hearing. He attended the hearing and had the assistance of an interpreter. The Tribunal account of the hearing indicates that it took into account the documents the applicant submitted at the hearing and during the hearing identified to the applicant matters that were likely to prove determinative, in particular the possible absence of a Convention nexus to the applicant's claims.
The only other matter that arises in relation to conduct of the Tribunal hearing is the significance of the applicant's claim at the hearing which the Tribunal took to suggest that he was claiming that he may commit suicide if he had to return to India. It found on the basis of the conduct of the hearing that there was nothing to suggest that the applicant was not competent to give evidence. Thus it engaged in the requisite consideration of whether there was evidence that the applicant’s mental state was such that he was not able to take advantage of the invitation under s.425 of the Act. This aspect of the second ground in the application is not made out.
The final aspect of this ground is a contention that the Tribunal failed to comply with s.424A(1). There are no particulars of the adverse information intended to be encompassed by this ground. However the Tribunal decision was not based on information subject to the obligation within s.424A(1). Insofar as it was based on information that the applicant provided and independent country information, such material falls within s.424A(3) exceptions. There is no obligation on the Tribunal to put its provisional reasoning to an applicant under s.424A of the Act (see generally SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). No failure to comply with s.424A is established on the basis of the second ground in the original application.
The amended application contends that the Tribunal failed to comply with what is said to be a mandatory procedure prescribed by the Act, in failing to comply with s.424AA(b)(iv) of the Act. Section 424AA complements the Tribunal's obligations under s.424A. It does not impose a mandatory obligation on the Tribunal, insofar as that is contended for by the applicant. Rather, as indicated by Marshall J in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12], s.424AA enables the Tribunal, if it so chooses, to give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review orally during the hearing. It does not compel the Tribunal to give an applicant any particulars of country information which it intends to rely on during the hearing. Moreover, if information is within the exceptions to s.424A, the statutory opportunity to put “information” orally under s.424AA rather than in writing under s.424A does not apply (see SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270).
The Tribunal account of what occurred in the Tribunal hearing does not indicate that it sought to rely on the procedure under s.424AA to put information that would be the reason or part of the reason for affirming the decision under review to the applicant in the course of the hearing such as to give rise as to the obligation under s.424AA(b)(v) to adjourn the review if the Tribunal considered that the applicant reasonably needed additional time to comment or respond to the information.
It appears from the particulars to this ground that the applicant contends that he requested time to provide a translated copy of a newspaper and that he was not given that opportunity and that this was somehow a failure to comply with s.424AA(b)(iv). However these are not circumstances in which the provisions of s.424AA came into play. Insofar as the amended application relies on 424AA it is misconceived and misunderstands the scope and purpose of the section. Information for the purpose of s.424AA has the same meaning as in s.424A(1) (see SZLTC v Minister for Immigration & Anor [2008] FMCA 384 at [18]). The Tribunal did not rely on such information. It did not embark on oral disclosure of particulars of information which formed the basis for its decision.
More generally, there is no indication in the material before the Court that the applicant sought additional time to provide a translation of the newspaper article. In any event the Tribunal accepted the applicant's claim that he had been attacked at the bus stop in 2003 and that this had been reported in the newspaper. However while it accepted that these events had occurred, for reasons which it gave, it did not accept that the attackers were motivated for a Convention reason. Such findings were open to the Tribunal on the material before it for the reasons which it gave and no jurisdictional error is established on the basis contended for by the applicant.
In the second particular the applicant claimed that he requested time to provide further documents, including documents relating to his role in the BJP. He contended that the Tribunal refused to allow him time to do so and that this constituted a failure to comply with s.424AA. Again this misconceives the scope of s.424AA.
There is nothing in the material before the Court to indicate that the applicant made a request for time to provide further documents which would have had to have been considered by the Tribunal. Moreover the Tribunal noted that on the applicant's own evidence he did not develop an interest in politics and the BJP until 2007 and that he had not received any direct threats. This was said to indicate that he had not received any threats because of his interest in politics.
For the sake of completeness, I note that I referred earlier to the fact that the Tribunal described the applicant’s claim about his involvement in the BJP and the consequences as "vague and substantiated" [sic]. This is clearly a typographical error and should read "vague and unsubstantiated". Reading the Tribunal decision fairly and as a whole, no arguable jurisdictional error arises out of this error of a typographical nature (see CCC v Minister for Immigration Multicultural Affairs [2001] FCA 682, Foroghi v Minister for Immigration Multicultural Affairs [2001] FCA 1875, and SZLPH v Minister for Immigration and Citizenship [2008] FCA 744).
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,200. The applicant indicated that he had no job and would pay later on. The circumstances are not such as to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent, but they may be matters to be taken into account by the first respondent in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 25 November 2008
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