SZOEN v Minister for Immigration - [2010] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 696

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZOEN”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425

Abram v Bank of New Zealand & Anor [1996] ATPR 41-507
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Neil v Nott (1994) 121 ALR 148
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant:

SZOEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG441 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

4 August 2010

Delivered at:

Sydney

Delivered on:

9 September 2010

REPRESENTATION

The Applicant:

The Applicant appeared in person with the assistance of a Hindi interpreter.

Solicitors for the Respondents:

Clayton Utz (Svetlana Zarucki)

ORDERS

The application filed on 3 March 2010 is dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application fixed $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG441 of 2010

SZOEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Refugee Review Tribunal (“Tribunal”) RRT case reference number 0908814 of Tribunal member Angela Cranston made on 8 February 2010 affirming the decision of a delegate of the Minister for Immigration & Citizenship to refuse to grant a Protection (Class XA) visa to the Applicant.
A Court Book (“CB”) prepared by the first Respondent’s solicitors and marked “A” is the only evidence before Court.

Background

The Applicant, who claims to be a citizen of India, arrived in Australia on 15 June 2009 and applied to the Department of Immigration & Citizenship (“the Department”) for a Protection (Class XA) visa on

20 July 2009. The delegate decided to refuse to grant the visa on

9 October 2009 and notified the Applicant of the decision and his review rights by letter. The delegate refused the visa application on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention. The Applicant applied to the Tribunal on 5 November 2009 for a review of the delegate’s decision.
In a handwritten statement which accompanies his Protection visa application the Applicant claims to fear harm as a Muslim from Hindu agressors. In his statement which has been reproduced in the Tribunal’s decision at [20] (CB 173-177) the Applicant made four claims as follows:
a)On 20 September 2008 he was attacked by Bajrang Dal (Hindu) People;
b)On 5 October 2008, there was a large altercation between Muslims and Hindus. Although he was at work at the time, he was arrested, accused of being involved in the altercation and forced to report to the police station everyday;
c)In February 2009, he was drinking tea in the Jumbo Hotel when he was attacked by Shiv Sena and Bajrang Dal People; and
d)In April 2009 his wife went to the market and was threatened.
On 9 October 2009, the Applicant attended an interview with the delegate at which time he expanded his claims. He stated that if he returned to India he would be at risk of harm from the Indian police as he did not fulfil his bail conditions after being released from detention in September 2008. He claims he was detained due to being caught up in a round up of riot participants in Mumbai.
At the first court date directions hearing, the Applicant indicated that he wished to participate in the court sponsored legal advice scheme and a panel advisor was allocated to him. The panel advisor provided the Applicant with written advice but did not prepare an amended application. The Applicant was granted leave to file an amended application which he filed on 18 June 2010. The amended application contains the following grounds.
1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance with s.424A as decided by the majority judge of the High Court in SAAP.
2. The Tribunal failed to consider an integer of my claim, in failing to consider whether or not a liberal Muslim by India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunla is satisfied that my home had been destroyed in 1992.

Tribunal decision

The Applicant appeared before the Tribunal on 27 January 2010 and gave evidence in support of his claims (CB 130-131, 177). I have relied upon the written submissions prepared by the Respondent’s solicitor, Ms Zarucki in respect of the summary of the Tribunal’s finding. I made no further direct attribution to the material as this could make the summary unwieldy. The information was provided to assist in the understanding of the nature of the application, not to establish any evidentiary point.
The Tribunal found that:
a)There were numerous inconsistencies between the evidence given by the Applicant in the statement which accompanied his Protection visa application and that given by him at the hearing (CB 119.5).
b)The Applicant was unable to provide any plausible explanation as to why the Shiva Sena and the Bajrang Dal people would continue to harass him and his wife, or why the police would suspect that he was a party to an altercation in circumstances where he was at work at the time (CB 181.6 at [36]).
c)The Tribunal was unable to find any independent information which referred to the altercation claimed by the Applicant, nor did any country information suggest that Muslims were persecuted in Mumbai (CB 181 at [36]).
d)On the basis of these concerns, the Tribunal did not find persuasive that police statements which the Applicant provided in support of his claims (CB 181 at [36]).
e)For these reasons, the Tribunal was not satisfied that the Applicant or his wife had experienced any of the alleged harm claimed to have been suffered in 2008 or 2009 (CB 182 at [38]).
f)In any event, the Applicant would be able to enjoy a meaningful protection of the Indian police and other security institutions if he were to return to Mumbai (CB 182 at [39]; and
g)Accordingly, the Tribunal was not satisfied that there was a real chance that the Applicant would experience serious harm for a Convention reason if he were to return to India in the reasonably foreseeable future (CB 182 at [40]).

Consideration

The Applicant relies on two very broad, un-particularised grounds of review. The Applicant did not provide any written submissions prior to the hearing and declined to make any oral submissions when invited to do so at the hearing. These grounds are, in effect, bare assertions of jurisdictional error. In the absence of particularised grounds or oral or written submissions the Applicant has done little to identify the basis on which he seeks judicial review of the Tribunal decision.
The Applicant is a self represented litigant and in these circumstances I note that in Abram v Bank of New Zealand & Anor [1996] ATPR 41-507 the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150, to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of a party which are obfuscated by their own advocacy. What a judicial officer must do to assist a litigant in person depends on the litigant, the nature of the case, the litigant’s intelligence and the understanding of the case.
In this matter the Applicant is relying on the Hindi English interpreter and does not appear to have any understanding or appreciation of the litigious process in which he is embarking or the onus which upon him to establish his grounds of review.
The Applicant is entitled to the rights afforded to him under Division 4 of Part 7 of the Act and in particular the operation of s.422B of the Act. In order to extend this entitlement to the Applicant, I intend to review the Tribunal’s obligation in this division, in the absence of any appropriate pleaded grounds of review supported by particulars and submissions.
In the first ground of the amended application the Applicant alleges that the Tribunal breached s.424A of the Act, because the Tribunal member had failed to provide information to him prior to its decision in order that he could make written comment on that information. The Applicant has not identified what information has failed to be supplied. The Tribunal in its decision did rely upon information but in each case is excluded by the operation of the section. This material was as follows:
a)Independent country information, this information falls within the exception set out in s.424A(3)(a) (CB 178 at [33]);
b)Information which the Applicant gave to the Tribunal for the purposes of the review application. That information falls within the exception set out in s.424A(3)(b) (CB 137-166);
c)Information given in writing by the Applicant in connection with his Protection visa application. That information falls within the exception set out in s.424A(3)(ba) (CB 37-47, 50-103); and
d)The Tribunal’s subjective appraisal, thought processes and determination in relation to the material before it. That information does not fall within the definition of “information” for the purposes of s.424A(1); SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 per Gleeson CJ, Gummow, Heydon and Crennan JJ at [18].
In the Tribunal’s decision it records the evidence given by the Applicant on 27 January 2010 during the hearing (CB 177 at [23]-[28]). Then the Tribunal put to the Applicant a series of issues that arose from his evidence. The Tribunal member explained to the Applicant how the information was relevant to the review and the consequences of the information being relied upon by the Tribunal as required by the Tribunal pursuant to s.424AA(b)(i). The Tribunal invited the Applicant to orally respond to the information pursuant to s.424AA(b)(ii). The Tribunal advised the Applicant that if he needed further time to respond an extension of time could be granted pursuant to s.424AA(b)(iii). There was nothing to indicate that the Applicant sought further time to comment on or respond to the information and the Tribunal was not required to adjourn the review as required by s.424AA(b)(iv).
The Applicant was validly invited to and attended the hearing before the Tribunal on 27 January 2010. At that hearing the Tribunal put its concerns to the Applicant about the inconsistencies in his evidence. In adopting this approach the Tribunal satisfied s.425(1) in the manner outlined in SZBEL v Minister for Immigration & Multicultural Affairs (supra) at [42]-[44] by ensuring that the Applicant, at the hearing, was sufficiently alert to the determinative issues arising on the review and that he had an opportunity to respond to them (CB 178 at [29]-[32]).
I am satisfied on the information before me and in the absence of pleadings or submissions to the contrary that the Applicant has been afforded procedural fairness in accordance with the provisions under Division 4 of Part 7 of the Act. The Applicant has raised an alleged breach of s.424A which is the provision within this part. However, the claim appears to have been made in the absence of an understanding of that provision and the complex set of authorities which have been established in respect of interpretation. Although the alleged breach has been made as a bland un-particularised claim on a fair reading of the Tribunal decision it is not apparent that this provision of the Act was invoked. Consequently this ground of review cannot be sustained.
The second ground of review claims that the Tribunal failed to consider an integer of the Applicant’s claim namely that a liberal Muslim in India was at risk of harm from radical Hindus and was unable to assess effective protection.
On a fair reading of the Tribunal decision the Tribunal reviewed the material contained in the statement attached to his visa application. At the hearing, the Tribunal advised him that they had reviewed the material and invited him to make further oral submissions in respect of his claim. At the end of this step they then put to him a series of questions that arose from that material. Finally, the Tribunal reviewed relevant independent country information in respect of the issues raised by the Applicant. I acknowledge that although the Applicant did not express these claims before the Triubnal in the terms set out in the second ground, I believe an inference can be drawn that this was the thrust of his argument. The argument cannot be sustained that the Tribunal did not focus its consideration on this specific complaint.
The Tribunal found that the incidences advanced by the Applicant in respect of his alleged persecution by Hindu groups were not persuasive. The Tribunal acknowledges that while the independent country reports indicate that there are Hindu – Muslim clashes in the Maharashtra State, the reports do not suggest that Muslims are harassed simply because they are Muslims. The Tribunal noted that India is a long standing democracy and is governed essentially by the rule of law, has a tradition of secular government and an independent judiciary. Perpetrators of religious violence are held responsible for those offences and held accountable by the law. The Tribunal found that the Applicant would in fact have access to effective protection if he were to return to India and therefore dealt with and rejected the factual premise that the Applicant would be unable to access effective protection: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 per French, Sackville and Hely JJ at [47].

Conclusion

The only evidence before the Court are the contents of the Court Book and the Tribunal decision. On a fair reading of this material it is not apparent that any alleged jurisdictional error has been made by the Tribunal. In these circumstances the application should be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 9 September 2010