SZQKP v Minister for Immigration - [2011] FMCA 990

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 990

MIGRATION – Review of Refugee Review Tribunal decision – persecution – whether Tribunal required to put information that is not adverse information to the applicant –where grounds unclear and not particularised or expanded upon orally – whether appropriate for Court to divine meaning of unclear grounds – merits review.

Migration Act 1958 (Cth), ss.91R, 424A

SAAP v Minister for Immigration (2005) 228 CLR 294
SZBYR v Minister for Immigration (2007) 235 ALR 609

First Applicant:

Second Applicant:

Third Applicant:

SZQKP

SZQKQ

SZQKR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1452 of 2011

Judgment of:

Raphael FM

Hearing date:

30 November 2011

Date of Last Submission:

30 November 2011

Delivered at:

Sydney

Delivered on:

30 November 2011

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1452 of 2011

SZQKP

First Applicant

SZQKQ

Second Applicant

SZQKR

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who travelled to Australia in February 2006 holding a long stay business visa. In March 2008 his wife arrived in Australia, also as the holder of a long stay business visa. They have a daughter. The applicant and his wife were granted further long stay business visas on 13 January 2009 which were in effect until 17 October 2010. On 15 October 2010 the male applicant applied for a visa under the Employer Nomination Scheme. That was refused in March 2011. On 19 January 2011 all three applicants applied for protection visas. On 10 March 2011 those applications were refused by a delegate of the Minister. On 6 April 2011 the applicants applied for review of those decisions from the Refugee Review Tribunal. On 6 May 2011 the Tribunal wrote to the male applicant pursuant to s.424A of the Migration Act 1958 (Cth)[1] providing him with particulars of information which could be considered to be relevant for the reasons there expressed.
[1] “Act”
It gave the applicant until 31 May 2011 to respond. The applicant did not respond. Although the Tribunal was entitled, on the basis of that non-response, not to grant the applicant an interview, it did. The applicant was interviewed by the Tribunal which on 10 June 2011 determined to uphold the decision not to grant protection visas.
The grounds upon which the male applicant claimed he was a person to whom Australia owed protection obligations was that he was a member of the Scheduled Castes. Although he had some lengthy period of education he claimed that he had to leave his studies in 1988 because of torture. He said that he fled to Goa where he learned the trade of a chef. It appears that he was quite successful at this trade because he later moved first to Bahrain and then to Singapore with the Goan chef with whom he had worked in that state.
The applicant claimed that as a member of the Scheduled Castes he was discriminated against in his education and he had to sit separately from other members of his class. He believed that if he was to return to India and to West Bengal the people there were committed to crime and would run after people of the Scheduled Castes and throw stones or threaten them with knives. He told the Tribunal that if he returned to India he had no house to live in and nowhere to go. His relatives were very poor and had a hard life.
When the Tribunal asked him if he could not go to a big city he said that if he did that people would take his luggage and money because there was no car to pick him up. He told the Tribunal that he was now 40 years old and did not know how to start from the beginning and wanted to remain in Australia where he was able to provide his child with a good education. He believed that people from the upper castes, if they found out he was from a lower caste, would definitely try and kill him. He did not believe he could enrol his children at school or go to prayer halls.
In the Tribunal’s questioning of the applicant upon these matters it pointed out to him that whilst there was certainly discrimination against members of the Scheduled Castes independent country information indicated that there had been an improvement in the situation. The Tribunal pointed out to the applicant that he had previously been employed on at least an average wage and that it had difficulty in being satisfied that the discrimination that the applicant claimed he might suffer amounted to serious harm within the meaning of s.91R of the Act.
The Tribunal also questioned the applicant’s wife who gave similar evidence to the applicant that it was difficult for members of the Scheduled Castes to go to the temples or for their children to attend school. There was concern that there were no drinking water facilities in her village and that there were other problems as well. She believed it would be hard for her children to adjust having lived in Australia for some time. At [45][2] the Tribunal sums up the applicant’s claims:
“The applicant claims, essentially, that he will face discrimination, harm and maybe killed as a result of belonging to a Scheduled Caste. The applicant referred to the discrimination he had suffered in the past, being unable to attend school or to buy books and shoes, being discriminated against by the teachers and classmates and also during his employment in the hotel. The Tribunal accepts that evidence and accepts that the applicant may have suffered the discrimination to which he referred. The Tribunal also accepts the evidence of the applicant’s spouse who referred to her inability to attend school. The Tribunal also accepts having regard to the country information the discrimination against the Scheduled Castes persists and that it results in discrimination and access to health, education and employment and often violence. The Tribunal accepts that if the applicants were to return to India they may also experience some degree of discrimination in terms of employment and access to social services. However, in the Tribunal’s view such discrimination would not amount to serious harm.”
[2] [CB 125]
In its Findings and Reasons the Tribunal continue in this vein dealing in more detail some of the claims made by the applicant, but it concludes that at [54][3]:
“Having considered the applicant’s claim singularly and cumulatively, the Tribunal finds that there is no real chance that the applicants will be persecuted, for any Convention reason or a combination of reasons, if they were to return to India now or in the reasonably foreseeable future. The Tribunal finds that the applicants do not have a well-founded fear of persecution.”
[3] [CB 128]
On 8 July 2011 the applicant filed an application with this Court seeking judicial review of the Tribunal’s decision. There were three grounds to the application. The first was:
“My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority judge of the High Court in SAAP.”
SAAP v Minister for Immigration (2005) 228 CLR 294[4] was a case in which some oral evidence given by the daughter of the applicant was adverse to the applicant’s claims. The High Court decided that this evidence constituted the type of information to which s.424A of the Act referred and therefore the Tribunal should have written to the applicant putting that information to him and offering him an opportunity to comment upon it.
[4] SAAP v Minister for Immigration (2005) 228 CLR 294 (“SAAP”)
The only evidence in this case that could possibly come within the context of SAAP was that of the applicant spouse, but it is to be remembered that the Tribunal accepted the applicant’s spouse’s evidence, which essentially corroborated that of the applicant. In those circumstances there was no adverse information and therefore no obligation under s.424A arose. The evidence of the applicant’s wife did not contain in its terms a “rejection, denial or undermining” of the applicant’s husband’s claims: SZBYR v Minister for Immigration (2007) 235 ALR 609.
As the Tribunal accepted much of the applicant’s evidence about the situation for members of Scheduled Castes there does not seem to me to be any other adverse information that the Tribunal should have put to him pursuant to ss.424 A or 424AA. It is not necessary to put to an applicant the fact that the Tribunal does not accept his submission that members of Scheduled Castes are likely to be killed for no apparent reason. The first ground of application is therefore unable to satisfy me that the Tribunal fell into jurisdictional error.
The second ground of application is:
“The Tribunal had no jurisdiction to make the said decision because “its reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.”
This rather opaque ground is not particularised and as this Court has made clear on many previous occasions it does not believe that it is appropriate to try and guess what the applicant might have meant. The applicant had an opportunity to address the Court today and he did not expand upon that ground. In its present form this ground does not evidence any jurisdictional error on the part of the Tribunal.
The final ground was:
“The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
As Ms Baggett says in her helpful written submissions:
“Insofar as the applicants assert that they meet the criteria for the grant of Protection (Class XA) visas, it is submitted that this seeks to engage the Court in impermissible merits review.…
To the extent that this ground asserts that the RRT failed to consider that the applicants met the criteria for the grant of Protection (Class XA) visas, the first respondent submits that the RRT clearly considered whether the applicants met the definition of ‘refugee’ and found that they did not.”
In my view on a reading of the whole of the Tribunal’s decision it is quite clear that it addressed the essential jurisdictional fact as to whether these applicants were persons to whom Australia owed protection obligations, bearing in mind the requirements of the Act and in particular the requirement of s.91R(1) of the Act.
When the applicant appeared before me today he told me that he had suffered persecution and that the Tribunal did not believe him. It was pointed out to him that the Tribunal had believed him but did not believe that what he suffered amounted to persecution. He then told the Court that he was not saying that the Tribunal had made a legal error, he just wished the Court to help him because he had a little baby and he believed that he would be killed if he returned to India.
The Court explained to the applicant that it was not able to substitute its views about his position for those of the Tribunal and that provided the Tribunal had come to its decision on the basis of evidence that was available to it then it would not have fallen into jurisdictional error in the way it made its decision in his case. This is the view to which the Court has come and in those circumstances the application is dismissed. The applicant shall pay the first respondent’s costs which are assessed in the sum of $4,700.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 12 December 2011