SZOMG v Minister for Immigration

[2010] FMCA 1016

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMG v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1016

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 426A

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
SZIFI v Minister for Immigration & Multicultural and Indigenous Affairs [2007] FCA 63
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

Applicant: SZOMG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1366 of 2010

Judgment of: Barnes FM

Hearing date: 8 December 2010

Delivered at: Sydney

Delivered on: 8 December 2010

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATSYDNEY

SYG1366 of 2010

SZOMG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 30 May 2010.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of India, arrived in Australia in August 2009 and applied for a protection visa in February 2010.  In a written statement accompanying his protection visa application he claimed he had joined the Khalistan Student Movement while a student, that the group had clashed with the Hindu Student Federation and that he was then warned that his name was on a “hit list”.  He claimed to fear that he would be killed by the Hindu Student Federation if he returned to India.  The applicant claimed he had been attacked many times by Hindu extremists and other groups in the past and that the authorities had failed to protect him.  He also made claims about harm to his father and his uncle by Indian security forces at the instigation of Hindu extremists.  In particular he claimed that his father had been arrested and his uncle had been shot. 

3. The delegate invited the applicant to attend an interview to discuss his claims and provide any new information.  The delegate recorded that the applicant did not respond to the letter of invitation and did not attend the interview.  The delegate refused his application for a protection visa, noting the absence of information and details in the claims and the lack of an opportunity to test the credibility of the applicant’s claims. 

4. The applicant sought review by application lodged with the Tribunal on 30 March 2010.  He provided a residential address to which he wished all correspondence to be sent in that application.  He did not provide other contact details or the name of any authorised recipient or adviser. 

5. As the Tribunal recorded in its decision, it wrote to the applicant at the address provided by letter of 16 April 2010 notifying him that it was unable to make a decision in his favour on the material before it.  The Tribunal invited the applicant to attend a hearing to give evidence and present arguments in support of his claims at a specified date, time and place and advised that if he failed to attend, it may make a decision without taking any further action to allow or enable him to appear before it. 

6. The Tribunal hearing was scheduled for 18 May 2010. On 17 May 2010 the Tribunal received a completed response to hearing invitation form in which the applicant indicated that he would not take part in the Tribunal hearing. In those circumstances the Tribunal was satisfied pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) that it had discharged its obligation to give the applicant the opportunity to appear before it to give evidence. It decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. In its reasons for decision the Tribunal set out the applicant’s claims made in connection with his protection visa application.  It summarised these claims as a claim to fear persecution in India because the applicant’s “family were extremist Sikhs” and that he had been made “the victim of systemic harassment, persecution and constant death threats at the hands of the Hindu Student Movement, other extremist Hindus and extremist political parties in India.”  It set out his claim that the authorities had failed and were unable to protect him anywhere in India and detailed events that he claimed had occurred in India.

8. The Tribunal recorded that it had not had the opportunity to test the applicant’s claims.  It found that it could not be satisfied as to the veracity of those claims.  It explained that had the applicant attended the hearing it would have sought to clarify the claims and evidence.  The Tribunal detailed matters about which it would have sought to obtain further information, such as in relation to the claimed activities of the applicant and his family as extremist Sikhs and the clashes claimed they had experienced with Indian Hindu extremists, the threats made, whether the applicant was placed on a “hit list”, the applicant’s claim that he had reported the matter and the response of the authorities, whether the authorities had failed to give him protection and why there was no place in India out of the reach of extremist Hindus and political parties in India. 

9. The Tribunal concluded that it was not satisfied on the evidence before it of the applicant’s claims which it set out in detail.  The Tribunal was not satisfied on the evidence before it “that the applicant had been made the victim of systematic harassment, persecution and constant threats of death or that if he was not given protection in Australia he would be apprehended and killed at the hands of the Hindu Student Movement, other extremist Hindus and extremist political parties in India.”

10. The Tribunal was not satisfied on the evidence before it that if the applicant returned to India now or in the reasonably foreseeable future there was as real chance he would suffer discrimination or harassment involving serious harm because of his religion or his race or for any other Convention reason.  It concluded that therefore it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future “if he returns to China” (sic). 

11. The Tribunal concluded that it followed that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, that he did not satisfy the criteria in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act) for the grant of a protection visa. The Tribunal affirmed the decision not to grant the applicant a protection visa.

12. The applicant sought review by application filed in this court on 21 June 2010.  He filed a document headed “Amended Application” on 30 September 2010.  That document is more in the nature of a submission, but I have considered it as well as the original application and the affidavit filed by the applicant, insofar as they may be taken to raise any claim of jurisdictional error.

13. The applicant had nothing to add in oral submissions in relation to the grounds in any of the documents which he filed.  Rather, the applicant addressed his circumstances in India.  Such claims do not establish jurisdictional error.  As I endeavoured to explain to him, merits review is not available in this court. 

14. The first ground in the application is that:

    … the applicants (sic) case was not dealt in (sic) accordance with the law and the procedure , that there has been an error of law , and the proper law was not applied .  There has been similarly findings of the RRT like wise , and no cogent reason was given .  There has occurred a mistake of law , and thus has committed the jurisdictional and legal error. 

15. This ground is not particularised.  It does not establish jurisdictional error.  The submissions for the first respondent addressed the possibility that this ground may be intended to be a complaint that the Tribunal failed to comply with its statutory obligations.  However there is nothing in the material before the court to suggest or establish that the Tribunal failed to comply with its obligations under Division 4 of Part 7 of the Act or that it otherwise fell into jurisdictional error, whether by way of error of law or otherwise.

16. This is not a case in which any obligation arose under s.424A of the Act. The Tribunal complied with its obligations under the Act to invite the applicant to a hearing. The applicant consented to the Tribunal deciding the review without the applicant appearing before it (see s.425(2)(b) of the Act). Indeed, the Tribunal did not make its decision until the date for the scheduled hearing had passed. There is nothing to indicate that it failed to have regard to s.426A of the Act in exercising its discretion to make a decision on the review without taking further action to enable the applicant to appear before it.

17. Insofar as this ground takes issue with the Tribunal’s decision, the Tribunal was of the view that it could not reach the positive state of satisfaction required under the Act in relation to the applicant’s claims on the evidence before it.  It gave reasons for its lack of satisfaction, in particular the lack of an opportunity to test the applicant’s claims in specific respects which it detailed.  As submitted for the first respondent and as discussed in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, s.65 of the Act requires the decision maker to reach a positive state of satisfaction as to whether protection obligations are owed. In the absence of such positive state of satisfaction the legislation mandates a refusal of the application. Ground one is not made out.

18. Ground two asserts that the Tribunal failed to consider the evidence the applicant “placed on file” and that the applicant met all the requirements to be a refugee.  The contention that the applicant met all the requirements to be a refugee seeks impermissible merits review. 

19. Contrary to the applicant’s contention that the Tribunal failed to consider all the evidence, it is clear that it considered the Department’s file and all the material in support of the protection visa application referred to in the delegate’s decision. 

20. The applicant did not attend the scheduled Departmental interview or the Tribunal hearing and did not put any additional information before the Tribunal for consideration.  The Tribunal considered all the applicant’s claims as set out in his protection visa application. Its failure to be satisfied of the veracity of those claims does not establish that it failed to consider evidence from the applicant. 

21. Ground two is not made out. 

22. Ground three is that “various legal issues were left unaddressed”.  This claim is unparticularised and is not made out.

23. In the affidavit filed in support of the application, the applicant repeated aspects of his refugee claims.  Again, this does not establish jurisdictional error.  He also claimed that the Tribunal did not consider country information and appeared to assert that it was necessary for the Tribunal to consider the country situation when there were so many people who were said to be discriminated against in the same manner as the applicant.  These contentions do not establish jurisdictional error.  The Tribunal is not obliged to consider country information in every case.  In particular, in this case there was no obligation on the Tribunal to consider country information in circumstances where it did not accept the veracity of the applicant’s claims about what he said had occurred in India and his fears were he to return to India.  It was not obliged to consider country information that may have been relevant if the applicant’s claims of past harm had been accepted.

24. There is also a reference in the affidavit to there being a clear breach of the law applicable for the time being in force.  Insofar as this refers to the Tribunal decision and reiterates the grounds in the application, for the reasons given it is not made out.  Insofar as it is intended to be a reference to the applicant’s claims, it seeks merits review and does not establish jurisdictional error.

25. The document headed “Amended Application” filed on 30 September 2010 consists largely of an elaboration and repetition of the claims made in connection with the protection visa application.  As indicated, those grounds were considered by the Tribunal and the repetition and elaboration on those grounds does not establish jurisdictional error. 

26. In the penultimate paragraph of the document the applicant claimed that:  “My evidence although was discussed by the respondent number two,but they failed to make a decision keeping in view the real legal prospects of the matter, while discussing my evidence , there are many legal errors by not applying the Refugee law ,as the applicant completed all the four key elements of being a refugee.” 

27. This generally expressed contention appears to reiterate the grounds in the original application.  Insofar as it is contended that the Tribunal made an error of law and did not apply the correct law, such a claim is not made out.  It is apparent from the Tribunal’s outline of the applicable law that it properly had regard to the provisions of the Refugees Convention as amended by the Refugees Protocol insofar as necessary to do so, having regard to its findings. 

28. It is also apparent from the concluding paragraphs of the Tribunal decision that having found that it was not satisfied of the veracity of the applicant’s claims it concluded (in terms consistent with the applicable law) that it was not satisfied on the evidence before it that if the applicant returned to India now or in the reasonably foreseeable future, there was a real chance he will suffer serious harm because of his religion or race or for any other Convention reason.  The Tribunal was thus not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future.

29. There is one aspect of this part of the Tribunal reasons for decision (in the concluding part of its reasons in paragraph 34) that it is necessary to address, notwithstanding that this was not a matter raised by the applicant or the first respondent. 

30. In all but one place in the Tribunal reasons for decision the Tribunal properly referred to the applicant as a citizen of India and discussed his claims by reference to what he said had occurred in India.  It expressed its lack of satisfaction that the applicant had been the victim of the conduct complained of or that he would be apprehended and killed in India.  It concluded it was not satisfied that if the applicant returned to India now or in the reasonably foreseeable future there was a real chance he would suffer persecution for a Convention reason.  However in then expressing its lack of satisfaction on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason it referred to “if he returned to China”.  This is clearly an error, as the applicant did not claim to intend to return to China. 

31. The issue that arises is whether such an error demonstrates jurisdictional error in the manner considered by Greenwood J in SZIFI v Minister for Immigration & Multicultural and Indigenous Affairs [2007] FCA 63, for example, on the basis that it indicates a failure by the Tribunal to consider the applicant’s claims, a misunderstanding of the applicant’s claims, or a failure or constructive failure to carry out the review (SZIFI at [33]).

32. However in this case, having regard to the whole of the Tribunal decision, in my view it is apparent that the error is no more than a typographical error.  While this ought to be acknowledged, in the sense discussed in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875, in the particular circumstances of this case it is not an error capable of affecting the exercise of the Tribunal’s jurisdiction.

33. The particular single misdescription of the applicant’s home country in the manner described (where all other references were correct), is not such as to “suggest that the deliberative process going to the merits of the [applicant’s] case was infused with notions which are erroneous and thus irrelevant to [his] case” or that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases” (SZIFI at [33]).

34. In all other respects, including at the commencement of the decision, the Tribunal properly referred to and considered the applicant’s claims to be a citizen of India (cf SZIFI where this was not the case).  The Tribunal did not take into account any notion that the applicant was a Chinese rather than an Indian citizen.  It correctly set out all of his claims and evidence in relation to the events that he claimed had occurred in India.  There is nothing to suggest that it misunderstood his claims.  In its findings and reasons the Tribunal recited the applicant’s claim to fear persecution if he returned to India and summarised the applicant’s claims about what he said had occurred in India and his fears if he returned to India.  Moreover, critically, the Tribunal’s conclusion as to its lack of satisfaction that there was a real chance the applicant would suffer persecution and serious harm constituting persecution because of his religion, race or for any other Convention reason properly addressed his claims and the situation if the applicant returned to India (cf SZIFI at [43]).

35. In these circumstances the Tribunal’s conclusion expressed by reference to whether the applicant had a well-founded fear of persecution for a Convention reason which followed directly on from the detailed consideration of the applicant’s claims in relation to India was clearly referable to those claims, notwithstanding the drafting oversight or typographical error in the reference to China.  It has not been established that the Tribunal fell into jurisdictional error on this basis. 

36. As no jurisdictional error has been established the application must be dismissed.

RECORDED   :    NOT TRANSCRIBED

1. The applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is considerably less than the amount provided for in the Federal Magistrates Court Rules. It is appropriate, having regard to the nature of this and other similar matters.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  22 December 2010