SZQTS v Minister for Immigration
[2012] FMCA 468
•30 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 468 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had not considered all claims made, was unfair and reached a decision which was incorrect. |
| Migration Act 1958, ss.47, 48A, 411, 414, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZQTS |
| Second Applicant: | SZQTT |
| Third Applicant: | SZQTU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2402 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 May 2012 |
| Date of Last Submission: | 30 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2012 |
REPRESENTATION
| The Second Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The second and third applicants pay the first respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2402 of 2011
| SZQTS |
First Applicant
| SZQTT |
Second Applicant
| SZQTU |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant was born in Australia on 13 September 2009. His mother and father, the second and third applicants respectively, arrived in Australia on 26 May 2008.
On 31 January 2011 the applicants applied to the Department of Immigration and Citizenship (“department”) for protection visas. The first applicant, who was the primary applicant in that application, alleged that he feared persecution in India because of his family’s political opinions. His parents were included in the application as members of his family unit.
On 1 February 2011 the first applicant was advised by the department that the second and third applicants’ applications were invalid because they had been refused protection visas in November 2008 and, not having left Australia since that time, were prevented from making subsequent applications by s.48A of the Migration Act 1958 (“Act”).
On 19 April 2011 a delegate of the first respondent (“Minister”) refused the first applicant’s application for a protection visa. The applicants subsequently applied to the second respondent (“Tribunal”) for a review of that decision. However, on 6 October 2011 the Tribunal affirmed the decision of the delegate to not grant the first applicant a protection visa. It also found, in relation to the second and third applicants, that it did not have jurisdiction to consider their applications to it. The applicants have now applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the first applicant’s claim for a protection visa were set out on pages 4-12 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The first applicant made the following claims in his protection visa application:
a)his father was threatened by the BJP and was also arrested on false “accusations” while in India. His grandfather urged his father to leave because he knew that the opposition party wanted to get him (the third applicant);
b)his parents left India to avoid persecution;
c)on 19 February 2010 his grandfather, who was a local leader of the Congress Party, was attacked and shot in the leg while en route to Bazpur city. His leg was amputated as a result;
d)opposition parties will harm him if he goes to India as his family is perceived as having political views opposed to the local majority parties. The authorities will not protect him as the police act for the local party leaders; and
e)his father did not have a place to hide in India. If they returned, he (the first applicant) would be placed in a difficult situation.
The first and second applicants appeared before the Tribunal on 9 August 2011 and 22 September 2011 to give evidence and present arguments. On the first hearing day, the second applicant made the following claims on behalf of her son, the first applicant:
a)her father-in-law became a member of the Congress Party in 2006 and her husband became a member in 2007;
b)her father-in-law was “like a president” of the Congress Party. During election time, he collected votes from the village – as did her husband – and then transferred people from place to place so that they could vote. Other than that, she did not know what his responsibilities were because women did not take part in such affairs;
c)the shooting of her father-in-law in 2010 occurred as a result of the conflict between the BJP and the Congress Party. On that day, about twenty to twenty-five members of the BJP converged at her father-in-law’s house and shot at him. Although the offenders were arrested that same night, they were released a few days later after they paid off the police and because the BJP were supporting them;
d)prior to this incident, her father-in-law was attacked on a number of occasions while going to the market but he managed to escape. He was targeted because he was a member of the Congress Party;
e)her father-in-law went into hiding after the 2010 shooting incident. However, their sources informed them that people had come to his house to look for him;
f)the BJP had attacked her father-in-law and could kill her son. They had received a threat that if they returned to India they would be killed; and
g)there was a recent incident when a whole family was killed by the BJP. They used Muslims to get the job done.
The second applicant made the following additional claims on 22 September 2011:
a)she did not know much about her husband’s involvement in the Congress Party because in India women were not informed of their husband’s political activities;
b)her husband held an official position within the Congress Party but she had never asked him about it;
c)her husband provided full support to the Congress Party candidate in the 2007 elections by transporting people to the polling booths so they could vote;
d)she was not really a member of the Congress Party. However, during the 2007 elections she and about eight to ten other women visited people’s homes and asked them to vote for the Congress Party candidate;
e)she and her husband were kidnapped by the other party after the elections. They were threatened with death, bound and left in the jungle overnight. The kidnappers then handed them over to the police and accused them of hiring people to cast fake votes and of forcing others to vote. The Congress Party paid the police and they were released a day later;
f)their political opponents tried to attack them about five or six times so they went to Punjab for a month. When they returned, the same thing happened so they went to Thailand, Malaysia and Singapore. They returned to India because of language problems but the same thing happened again. They were attacked whenever they went out. In one such incident, her husband was stabbed in the back. As a consequence, they decided to come to Australia;
g)they still received threatening phone calls; and
h)a few days before the hearing, five Congress Party members had been killed in a fight between the police and the parties.
The Tribunal’s decision and reasons
After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that he was a person to whom Australia had 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”). The Tribunal’s decision was based on the following findings and reasons:
a)the second applicant’s evidence regarding the third applicant’s political opinions and activities was vague and lacking in detail. For example, she claimed that the third applicant held an official position in the Congress Party but was unable to state what that position was. She also claimed that the third applicant had provided “full support” to the 2007 candidate but gave no particulars of this support, except to say that he had picked up people to take them to vote. In the Tribunal’s view, if the second applicant had also engaged in political activities in support of the Congress Party as claimed, she would have been aware of the third applicant’s official position and would have had better knowledge of what he did for the party;
b)on the limited evidence before it, and noting that the third applicant had been invited to attend the hearing to provide further information in support of the first applicant’s application but had not done so, the Tribunal was not satisfied that the third applicant was a member of the Congress Party or that his wife, the second applicant, had engaged in political activities in support of it. Consequently, the Tribunal did not accept that they had experienced any difficulties in India as a result of their alleged political opinions;
c)the Tribunal found that the first applicant’s claim to fear persecution in India was based entirely on the third applicant’s profile as an active member of the Congress Party. Having already rejected this aspect of the applicants’ claims, and given that these claims had also been rejected by the Tribunal which had reviewed the second and third applicants’ protection visa applications, the Tribunal did not accept that the first applicant faced a real chance of persecution in India because of his membership of his family, imputed political opinion or because of the third applicant’s alleged political profile;
d)in light of these findings the Tribunal did not accept that the first applicant’s grandfather was a local leader of the Congress Party or even an ordinary member of the party. The Tribunal noted in any event that the second applicant’s evidence on this subject was vague and illogical. She claimed that her father-in-law was “like a president” of the party but said that he was responsible for getting votes, as was her husband. The Tribunal did not accept that the second applicant would not have had a better awareness of her father-in-law’s role and responsibilities if he was in fact a Congress Party leader, particularly given her claim that she had also been politically active;
e)the Tribunal accepted that the first applicant’s grandfather might have had his leg amputated as a result of a gunshot injury. However, given that it did not accept that the first applicant’s father and grandfather were associated with the Congress Party as claimed, the Tribunal did not accept that the injury was sustained in the circumstances described or for the reasons alleged;
f)the Tribunal did not accept that the second applicant’s reference to an incident in which a family was killed by some Muslims was a suggestion that the first applicant feared harm on the basis of his religion but, rather, was a claim that political parties paid Muslims to do their “dirty work”. Given the Tribunal’s findings, it did not accept that the first applicant or his family would be at risk of harm from any political parties or from those who were paid to do their bidding if he was to go to India; and
g)in relation to the second applicant’s claim that five members of the Congress Party had recently been killed, the Tribunal said that even were it to accept that claim, it did not accept that this had any relevance to the first applicant.
Proceedings in this Court
The application commencing these proceedings alleged:
1.The Tribunal had not jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.
2.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequence of the claim.
3.The applicant 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.
Second and third applicants
At the outset it should be observed that the application to this Court does not seek review of the Tribunal’s decision that it had no jurisdiction to entertain the application made to it by the second and third applicants. Nevertheless, it is appropriate to observe that the Tribunal was correct to conclude that it had no jurisdiction in relation to them. There are two reasons for this. The first is that the application which the applicants made to the Tribunal expressly referred in section E to the fact that the application was for review of the delegate’s decision to refuse to grant a protection visa as advised in the departmental letter of 19 April 2011. That decision did not deal with the first applicant’s parents because it had been determined before the delegate made his decision that their visa applications were not valid ones. Consequently, the matter taken to the Tribunal expressly concerned only the delegate’s refusal of the first applicant’s visa application.
Secondly, to the extent that the application to the Tribunal might be said to have incorporated applications by the first applicant’s parents to review the decision that their applications were not valid, it was not a valid application for the purposes of s.414 of the Act because it sought review of a decision which was not an RRT-reviewable decision. Relevantly, the combined effect of ss.411 and 414 of the Act is that the Tribunal only has power to review decisions to refuse to grant or to cancel protection visas. Such decisions are described by the Act as “RRT-reviewable” decisions. A decision which is to the effect that an application is not a valid application is not such a decision.
The Minister initially submitted that the departmental officer who signed the letter to the applicants advising them that the second and third applicants’ visa applications were not valid was a ministerial delegate, a submission which was subsequently corrected to the effect that the relevant person was a departmental officer. Consequently s.47(4) does not apply to this case as might be thought would be the situation if the relevant decision-maker had been a ministerial delegate. However, that is not significant as the issue of the second and third applicants’ standing before the Tribunal turned on whether the relevant decision was an RRT-reviewable decision, not on the identity of the person who made it.
For these reasons, the Tribunal was correct to conclude that it had no jurisdiction to entertain the applications for review made to it by the second and third applicants.
Ground 1
Turning to what was alleged in the application, the first allegation proceeds on a false premise. The Tribunal did not arrive at a state of “reasonable satisfaction”. Rather, it concluded as stated at para.64 of its reasons:
The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Further, no particulars of the first allegation were supplied in the application although at the hearing of the application the second applicant, who appeared for all the applicants, said that the Tribunal had failed to consider all the information which had been provided to it. A failure to consider material which affects the exercise of power will amount to jurisdictional error.
The information which the applicants say was not considered by the Tribunal was information concerning the gun attack on the third applicant’s father which they alleged led to the amputation of his leg. Contrary to the applicants’ submissions, that information was expressly referred to in the Tribunal’s summary of its hearing with the first and second applicants, at paras.37 and 40 of its decision record. Its consideration of that information appears at para.60 of the decision record. As a result, the allegation must fail on the facts.
Ground 2
The second ground of the application alleges that the Tribunal’s decision was unjust. Subject to the following comments, this is a request for reconsideration of the Tribunal’s finding on the merits of the review application, a step which this Court is not empowered to take in these judicial review proceedings.
To the extent that this ground alleges that the Tribunal’s decision was unjust because it was the product of a deficient consideration of the claims and evidence advanced by the applicants, it is an allegation cognizable in these proceedings and in this regard the second applicant submitted that the Tribunal had not considered her side of the story, which must be understood to mean that it had failed to consider the claims which had been made. However, other than the documents concerning her father-in-law, the second applicant did not point to anything which she said the Tribunal had not considered. Indeed, a reading of the Tribunal’s decision record does not suggest that it failed to consider any material claim, evidence or submission which had been placed before it.
In the circumstances, I find that this allegation has not been made out.
Ground 3
The third allegation made in the application is a clear request for the Court to make its own decision concerning whether the applicants satisfy the criteria for the grant of protection visas and to substitute the Tribunal’s decision with its own. The Court is not empowered to do that. Further, the Tribunal did consider the claim to fear political persecution raised by the first applicant and, for reasons which were logical and reasonable given the evidence, concluded that it was not satisfied that he had a well-founded fear of such persecution were he to go to India.
For these reasons, the third ground of the application does not disclose jurisdictional error on the Tribunal’s part.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 8 June 2012
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