SZOJT v Minister for Immigration
[2010] FMCA 572
•30 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJT v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 572 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – applicant failing to attend interview with the Minister’s delegate and Tribunal hearing – Tribunal not satisfied with the applicant’s claims – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91, 424A, 425, 425A, 426A |
| MZXOT v Minister for Immigration (2008) 233 CLR 601 NAVX v Minister for Immigration [2004] FCAFC 287 |
| Applicant: | SZOJT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 970 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 30 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 970 of 2010
| SZOJT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 14 April 2010. The Tribunal affirmed a decision of a delegated minister not to grant the applicant a protection visa. The following statement of background facts is derived from the Minister’s written submissions filed on 19 July 2010.
The applicant, a citizen of India, arrived in Australia on 15 May 2008.[1] On 4 November 2009, the Minister received an application from the applicant for a Protection (Class XA) visa.[2] On 13 January 2010, the applicant was invited to an interview with a delegate of the Minister (delegate).[3] The applicant did not attend.[4] On 1 February 2010, the delegate refused to grant the applicant a Protection (Class XA) visa.[5]
[1] Court Book (CB) at 3 and 32.
[2] CB at 1-33.
[3] CB at 37-43.
[4] CB at 56.
[5] CB at 44-57.
On 22 February 2010, the Tribunal received the applicant's application for review of the delegate's decision.[6] On 12 March 2010, the Tribunal invited the applicant to appear before it to give evidence and present arguments.[7] The applicant did not appear before the Tribunal at the scheduled time, namely 10:00am on 14 April 2010.[8] On 14 April 2010, the Tribunal elected, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”), to proceed without taking any further action to allow the applicant to appear before it[9] and decided not to grant a Protection visa to the Applicant (Tribunal's decision).[10]
[6] CB at 58-61.
[7] CB at 65-71.
[8] CB at 76-77 and 86 [20]
[9] CB at 86 [20]
[10] CB at 83
On 14 April 2010 at 3:05pm, the Tribunal received a Response to Hearing Invitation form in which the applicant indicated that he would not be attending the Tribunal Hearing.[11]
[11] CB at 72-73
On 4 May 2010, the applicant applied for judicial review of the Tribunal's decision in this Honourable Court.
Applicant's claims
The applicant claims to be a citizen of India and a low caste Hindu.[12] Due to his membership of this social group, or alternative race, he claims:
a)he was maltreated by other students and was not allowed to sit with them or shake their hand;[13]
b)he was maltreated by teachers;[14]
c)he had to change educational institutions from place to place in India;[15]
d)he became depressed and frustrated as a result;[16]
e)he was bashed by fellow students many times;[17]
f)when he complained to his teachers, he was told to keep quiet;[18] and
g)his father could not get a job and was discriminated against for being a lower caste Hindu;[19]
[12] CB at 2 and 27-28.
[13] CB at 27.
[14] CB at 27.
[15] CB at 27
[16] CB at 27.
[17] CB at 28.
[18] CB at 28.
[19] CB at 27-28.
The Tribunal's decision
The applicant did not appear before the Tribunal.[20] The Tribunal elected to make its decision without taking further action pursuant to s.426A of the Migration Act.[21]
[20] CB at 72-73 and 86.
[21] CB at 86.
The Tribunal based its decision on the applicant's protection visa application and the following country information:
a)May 2007 report of the UK House of Commons Library;[22]
b)World Bank Report published in 2005;[23]
c)September 2006 Tribune Article;[24] and
d)July 2004 study by Professor Dipankar Gupta.[25]
[22] CB at 87-88.
[23] CB at 89-90.
[24] CB at 90-91.
[25] CB at 91.
The Tribunal found that the applicant is a citizen of India[26] and that discrimination occurs against low caste Hindus in India.[27] However it found that there was insufficient evidence to find:
a)the applicant is a low caste Hindu;[28]
b)the applicant had to change his (educational) institution from place to place in India;[29]
c)the applicant faced maltreatment and discrimination by other students;[30]
d)the applicant faced discrimination by teachers;[31]
e)the applicant became depressed due to his treatment in Year 12 at school;[32]
f)the applicant's father was unable to get a job because of his caste;[33]
g)the applicant's father suffered as claimed.[34]
[26] CB at 91.
[27] CB at 93.
[28] CB at 91 [35].
[29] CB at 92 [37].
[30] CB at 92 [39].
[31] CB at 92 [41].
[32] CB at 92 [43].
[33] CB at 92 [45].
[34] CB at 92 [45].
As the Tribunal was not satisfied that the applicant is not a lower caste Hindu, it was unable to find that he suffered discrimination and ill treatment and would continue to suffer such discrimination and ill treatment if he returned to India.[35]
[35] CB at 93 [46] and [48].
As the Tribunal could not find that the applicant's father was discriminated against because of being a lower caste Hindu, it was unable to find that the applicant would face persecution by higher caste Hindus if he returned.[36]
[36] CB at 93 [48].
The Tribunal found that there was no real chance that the applicant would experience serious harm or persecution if he returned to India.[37] Accordingly, the Tribunal found that the applicant did not have a well‑founded fear of persecution and is not a person to whom Australia has protection obligations under the Refugees' Convention.[38]
[37] CB at 93 [49].
[38] CB at 93 paragraphs [49]-[50].
These proceedings began with a show cause application filed on 4 May 2010. The applicant continues to rely upon that application. I incorporate in this judgment the two grounds in the application:
1. That the applicant has satisfied criterion as laid down s.36(2)(a) for protection visa, the respondents did not considered section 91R(1)(c) and section [91R](1)(b) as such the requirements under the laws were not fulfilled.
2. That the [Tribunal] failed to consider the evidence which the applicant placed on the file, there is a legal and jurisdictional error in the decision. The laws of natural justice were totally ignored in the present case. The respondent admitted in the decision that there is a great discrimination against the law caste Hindus.
The application appears to have been prepared with the assistance of someone having some understanding of the principles of jurisdictional error. The assertions in the application are repeated in part in an affidavit filed with it. I received that affidavit as a submission. The applicant filed a further document on 25 June 2010, headed “Grounds of the Amended Application”. I clarified with the applicant at the hearing before me today what he intended by that document. He explained that he wished to put before the Court a statement of the reasons why he is seeking protection. I note that the assertions in the document are substantially the same as the grounds advanced in support of the applicant’s protection visa application. I received that document also as a submission. However, I explained to the applicant that I was unable to deal with the merits of those claims.
I received as evidence the court book filed on 3 June 2010.
The applicant made oral submissions in which he drew attention to the position of low-caste Hindus in India. He submits that although the Indian Parliament has enacted legislation to protect members of lower castes and eliminate discrimination against them, the law is ignored in practice. There may be substance in those submissions, but they go to the merits of the Tribunal’s decision. The applicant failed before the Tribunal not because he was disbelieved, but because the Tribunal had insufficient information for it to be satisfied that he qualified for a protection visa. The Tribunal decision[39] records that the Tribunal considered each of the integers of the applicant’s claims and in each case, pointed to an insufficiency of information.
[39] CB 108-110.
The Tribunal wrote to the applicant by letter dated 12 March 2010, inviting him to attend a hearing[40]. In that letter, the Tribunal informed the applicant that it had considered the material before it, but was unable to make a favourable decision on that information alone. In other words, the Tribunal put the applicant on notice that the Tribunal could not make a favourable decision on the papers. For practical purposes, his attendance at the hearing to which he was invited was necessary, should he wish to be successful in his application. For some reason unknown, the applicant declined the hearing invitation. When I asked him why he had declined the invitation, he said, “What can I say”. He gave no explanation. In my view, the Tribunal’s decision was the inevitable consequence of the decision by the applicant to decline the hearing to which he was invited: NAVX v Minister for Immigration [2004] FCAFC 287 at [5]. There is no substance to the grounds of review advanced before this Court. I agree with the Ministers submissions covering those grounds.
[40] CB 65.
Ground 1
Section 91R(1) of the Migration Act confines the scope of Article 1A(2) of the Convention Relating to the Status of Refugees 1954 (Refugees Convention) as amended by the Protocol Relating to the Status of Refugees 1967 (Refugees Protocol) as it applies to the Migration Act and the Migration Regulations 1994 (Regulations). Section 91R(1) states that Article 1A(2) "does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
b)the persecution involves serious harm to the person; and
c)the persecution involves systematic and discriminatory conduct.
The Tribunal found that the applicant did not have a well founded fear of persecution upon the basis that the applicant had not provided sufficient evidence to support his claims.[41] Given that Tribunal found that there was no persecution, there was no need for it to consider whether that persecution involved serious harm or systematic and discriminatory conduct pursuant to ss.91R(1)(b) and 91R(1)(c).
[41] CB at 91-93.
In any event, the Tribunal found that "there is no real chance that the Applicant will experience serious harm as defined in the Migration Act upon return to India".[42] Section 91R(1) of the Migration Act requires the applicant to satisfy all the requirements in ss.91R(1)(a) to 91R(1)(c). Given that the Tribunal expressly found that the applicant failed under s.91R(1)(b), there was no need to consider whether the applicant satisfied s.91R(1)(c).
[42] CB at 93 paragraph [49]
Ground 2
This ground alleges that the Tribunal failed to consider all of the evidence which the applicant placed on the file. At paragraph 2 of the affidavit of the applicant sworn 23 April 2010, the applicant claims that the Tribunal failed to consider the applicant's "situation" and the "statement of the claim".
The applicant did not appear before either the Department or the Tribunal to present oral arguments and evidence. The totality of the claims and evidence submitted by the applicant to the Tribunal is:
a)the protection visa application[43] and the applicant's attached statement;[44] and
b)a copy of the applicant's passport.[45]
[43] CB at 1-26
[44] CB at 27-28
[45] CB at 29-33
I am satisfied that the Tribunal considered all of the applicant's claims made in his protection visa application and written statement.[46]
[46] see also CB at 86-87 paragraphs [21]-[30] and at 91-93 paragraphs [33]-[49].
The Tribunal relied on the applicant's passport as evidence proving that the applicant is a citizen of India.[47]
[47] CB at 91 paragraph [33]
Ground 3
The applicant does not provide any particulars in relation to this ground of review. I am satisfied that there was no breach of the procedural fairness provisions of the Migration Act, namely ss.424A, 425, 425A and 426A.
Section 424A of the Act
The Tribunal based its decision upon:
a)country information;[48] and
b)written evidence provided by the applicant to the Department.[49]
[48] CB at 87-91
[49] CB at 86-87
That information falls within the exceptions contained in ss.424A(3)(a) and 424A(3)(ba) of the Migration Act respectively. Accordingly, no s.424A obligation was enlivened and there is no breach.
Sections 425(1), 425A and 426A of the Act
By letter dated 12 March 2010, the Tribunal invited the applicant to appear before it pursuant to s.425(1) of the Migration Act.[50] The letter gave the applicant notice of the day, time and place at which the applicant was scheduled to appear. The letter was sent on the same day that it was dated by registered post to the last address for service provided by the applicant.[51] It gave more than the prescribed 14 days notice and contained a statement to the effect of s.426A of the Migration Act.
[50] CB at 65-71
[51] CB at 60 and 65.
The applicant did not appear before the Tribunal.[52]
[52] CB at 72 and 86 [20].
The Tribunal elected to make its decision in the applicant's absence and was entitled to do so by s.426A of the Migration Act.[53]
[53] CB at 86 [20].
For those reasons the Tribunal did not breach ss.425(1), 425A or 426A of the Migration Act and the applicant was not denied procedural fairness.
Ground 4
The Tribunal obtained and considered country information pursuant to s.424 of the Migration Act.
The applicant did not submit any country information to the Tribunal and does not particularise any country information that was before the Tribunal that the Tribunal failed to consider.
Ground 5
The applicant alleges that the Tribunal based its judgment "on the grounds which are not applicable in this case in hand".[54] The applicant does not particularise any non-applicable grounds upon which the Tribunal based its decision.
[54] Affidavit of the applicant sworn 23 April 2010 at [2].
The Tribunal refused to grant a protection visa to the applicant because the applicant did not provide sufficient evidence to prove his claims.[55] This is a proper basis for the decision, particularly given that the applicant did not appear before either the Minister's delegate or the Tribunal.[56]
[55] CB at 91-93.
[56] see paragraphs 3-5 above.
Ground 6
This ground seeks impermissible merits review. The Tribunal specifically considered whether the applicant had a genuine fear of persecution but found that that the claimed fear was not well founded.[57]
[57] CB at 93 paragraph [49]
Ground 7
The Court has no jurisdiction to review the decision of the Minister's delegate.[58]
[58] S.476(2)(a) of the Act; MZXOT v Minister for Immigration (2008) 233 CLR 601 per Gleeson CJ, Gummow and Hayne JJ at 615 [11], 616 [13], 627 [55]; per Kirby at 650 [144]; and per Heydon, Crennan and Kieffel JJ at 654-655 at [165] and [168] and 664 at [207].
I am satisfied that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 August 2010
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