SZOWL v Minister for Immigration
[2011] FMCA 150
•9 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 150 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider the applicant’s evidence, failed to consider the issues and failed to give proper findings. |
| Migration Act 1958, ss.65, 415, 425 Federal Magistrates Court Rules 2001, r.44.12 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294 |
| Applicant: | SZOWL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2748 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 March 2011 |
| Date of Last Submission: | 9 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Pursuant to Rule 44.12, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,935.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2748 of 2010
| SZOWL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was a member of the Khalistan Movement. He alleges that while in India he was an active member of the Khalistan Student Movement and that this subsequently led to threats on his life.
The applicant claims to fear persecution in India because of his political activism.
After his arrival in Australia on 18 September 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 22 September 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
Application to show cause
The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court, if the applicant does not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 of the Tribunal’s decision.
In a statement attached to his protection visa application, the applicant made the following claims:
a)he belongs to an activist family of supporters of the Khalistan Movement in India. His father and other members of his family are “extremist Sikhs”. His father and uncle were the victims of terrorism at the hands of Indian authorities in India. His father was arrested under a law known as TATA, his uncle was shot dead by the Indian Security Forces on the instigation of “Hindu Extremists” and his other close relations have been killed by “the Indian Hindu Extremists”;
b)he, along with his friends, joined the All Indian Sikh Student Federation to fight for the rights of Sikhs. They had a severe clash with the Hindu Sheve Sana Party (Hindu Dharam Parchar Party), which he said is an integral part of the BJP and the RSS;
c)he was a member of the Khalistan Student Movement, a student wing of the All Indian Sikh Student Federation. The Hindu Sheve Sana Party attempted many times to “finish” his group and there were many clashes between the two groups;
d)he was the main and active member of his student party and an activist in his college, a fact that was known by the Hindu Student Federation (“HSF”). As a result they sought to kill him and have placed his name on a hit list. He received many death threats from the HSF and they tried to raid his house in order to kill him but he managed to survive. He reported this to the authorities but they did not take any action;
e)he fears for his life especially as the HSF is powerful because it is backed by the BJP;
f)the Khalistan Movement is still active in India. The security forces and other intelligence authorities are after him;
g)he has been warned by the HSF that he will be killed and he has been “searched by them couple of times”. He has been attacked many times by the “Hindu Extremists” and the other groups he mentioned. The authorities have failed to protect him and his life is in grave danger; and
h)he has been a victim of systematic harassment, persecution and has received numerous threats to his life and if he returns to India, he will be killed.
On 21 October 2010 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 30 November 2010 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing the Tribunal might make a decision on his application without further notice. The applicant responded by returning a “Response to Hearing Invitation” form in which he indicated that he would not be taking part in the Tribunal hearing. The applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision and reasons
The Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
Because it found that the claims before it were lacking in essential detail the Tribunal was not satisfied that the applicant had suffered persecution in the past or that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to India in the foreseeable future. The Tribunal observed that although the applicant had stated that his name was on a list stating that he should be killed, there was no information about when this occurred or why he could not relocate to another part of India. The Tribunal also found that the applicant did not provide any documentary evidence to it or to the Minister’s department to support his claims that he was an activist at his college and that his name was on a hit list.
The Tribunal also observed that the applicant was invited to appear at the hearing which it appointed but he declined to do so with the result that the Tribunal was unable to question him further on the veracity of his claims, leaving those claims unclarified and the Tribunal’s questions unanswered.
Proceedings in this Court
In this case the first thing which must be considered is whether any error is disclosed by reason of the fact that the Tribunal made its decision without a hearing. In the discharge of its obligations under the Migration Act 1958 (“Act”), the Tribunal invited the applicant to a hearing. In this regard, s.425 provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Because the applicant advised in his “Response to Hearing Invitation” form that he declined to take part in the Tribunal’s hearing, he longer had a right to appear before the Tribunal, which was entitled to proceed to make its decision without taking any further action to allow or enable him to appear before it: Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294.
As a result, no error is disclosed by reason that the Tribunal proceeded to make a decision on the review without having held a hearing at which the applicant appeared.
The grounds of the application commencing these proceedings were pleaded as follows:
1.That the respondents failed to consider the evidence of the applicant, which resulted in the error of the law.
2.That the issues raised by the applicant were not discussed, and the proper findings were not given in the instant matter, this is the jurisdictional error.
3.That the applicant has got an arguable case before this court, the applicant shall submit a detailed legal/written submission.
In his affidavit filed on 20 December 2010 the applicant also made numerous other allegations.
Failed to consider applicant’s evidence
In the first ground of the application, the applicant alleged that the Tribunal failed to consider his evidence and that this amounted to an error of law. Neither this allegation nor the other two made in the application were particularised and as a result they lack meaningful substance. Specifically in relation to the first allegation, the applicant has not identified what evidence submitted by him as part of the visa application and review process was not considered by the Tribunal and it is not apparent that any was. The only evidence of any substance submitted by the applicant in support of his claim to be entitled to a protection visa was the statement which accompanied his protection visa application form and this was set out, apparently verbatim, at [20] of the Tribunal’s decision.
Having set out this material the Tribunal then proceeded to consider it at [24] and [25] of its decision. The fact that the Tribunal did not in its reasons describe a detailed analysis of what the applicant had asserted does not mean that the Tribunal had not properly turned its mind to the information which the applicant had proffered in support of his application for a visa. Such a discussion was unnecessary because without additional information such as documentary evidence supporting the applicant’s claims or oral evidence given by the applicant at a Tribunal hearing, the information in the statement accompanying the protection visa application form was, in the Tribunal’s view, lacking in essential detail. I am satisfied that the Tribunal did consider the evidence which the applicant had advanced but required more than this before it could be satisfied that he met the criteria for the grant of a protection visa.
Issues not discussed, proper findings not given
In the first part of the second allegation made in the application the applicant alleged that issues which he had raised were not discussed by the Tribunal. However, the applicant has not indicated what issues relevant to the Tribunal’s decision were not considered or “discussed” by it. The essence of the applicant’s claim was that he was active in a Sikh political movement, that this led to conflict with Hindu-based political organisations and that the members of those organisations threatened his life. These issues were expressly referred to by the Tribunal at [24] and [25] of its decision. The applicant has not identified any other issues which the Tribunal should have addressed and it is not apparent that there were any.
In the second element of the second allegation made in the application the applicant alleges that the Tribunal failed to give proper findings. However this misunderstands the Tribunal’s task, which is to determine whether it is satisfied that an applicant meets the criteria for the grant of a protection visa: ss.65 and 415 of the Act. A finding of satisfaction or lack of satisfaction is what is principally required of the Tribunal and what occurred in this case. Underpinning that finding were the Tribunal’s findings or conclusions that the applicant’s claims were lacking in essential detail and that it was not satisfied that the applicant had suffered persecution in the past or that he had a well-founded fear of persecution for a Convention reason were he to return to India in the foreseeable future. Those conclusions provided a sufficient basis for the Tribunal’s ultimate lack of satisfaction that the applicant was entitled to a protection visa.
It may be that the applicant’s allegation that proper findings were not given is really an allegation that the “right” findings were not given or made. If so, the applicant is inviting the Court to review the Tribunal’s decision on the merits of his application. However, the Court is not empowered to do that; it may only determine whether the Tribunal applied proper procedures and properly applied the law in reaching its decision.
The applicant has an arguable case
The third ground of the application is not a ground of review but is rather a submission and will be considered as such later in these reasons.
Allegations in affidavit
The applicant made numerous allegations in his affidavit filed in support of his application commencing these proceedings. Principally among those were the following:
a)the applicant alleged that the Tribunal did not consider country information. However, no country information was provided by the applicant and the circumstances of this review did not require the Tribunal to seek any out or to conduct its own inquiries in this regard;
b)the applicant alleged that the Tribunal “based his judgment on his own imaginations” but I find that the Tribunal conducted a bona fide review and reached a finding which was logically supportable;
c)the applicant in essence alleged that the Tribunal’s reasons were stereotypical. While it is almost inevitable that the Tribunal will not make a finding favourable to an applicant who does not attend its hearing, it is apparent that the applicant’s claims in this case were given individual consideration. For this reason, this allegation does not disclose jurisdictional error on Tribunal’s part;
d)the applicant alleged that “the amount of the persecution has not been estimated” but in this case the Tribunal said that it was not satisfied that the applicant had suffered persecution in the past or that he had a well-founded fear of persecution for a Convention reason in the future. That is to say, in the Tribunal’s view there was no persecution, or relevant persecution, to assess; and
e)the applicant alleged that the Tribunal made no mention that Sikhs in India are “suffering a lot by the hands of the authorities”. However, the question before the Tribunal was whether the applicant had a well-founded fear of persecution for a Convention reason based on his specific and personal claims and circumstances, not whether Sikhs generally suffered at the hands of the Indian authorities.
The applicant made other allegations in his affidavit but none of them disclosed error on the Tribunal’s part.
Conclusion
Returning to the submission made in the third allegation of the application, and contrary to that submission, I find that the applicant does not have an arguable case. I find that the Tribunal’s decision was not affected by jurisdictional error which means that the applicant cannot succeed in this proceeding.
As I find that the applicant does not have an arguable claim for relief, the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 17 March 2011