SZRGG v Minister for Immigration - [2012] FMCA 1048

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGG v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1048

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to consider whether the applicant would be persecuted for his religious beliefs – whether Tribunal failed to consider whether the applicant’s father would be persecuted for religious and political belief’s affecting the applicant – powers of the Tribunal – whether Tribunal required to consider whether applicant a citizen of Australia – whether Tribunal fell into jurisdictional error.

Migration Act 1958 (Cth) ss. 78, 411
Australian Citizenship Act 2007 (Cth) s. 12

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Applicant:

SZRGG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 566 of 2012

Judgment of:

Raphael FM

Hearing date:

22 October 2012

Date of Last Submission:

22 October 2012

Delivered at:

Sydney

Delivered on:

22 October 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
The litigation guardian of the applicant pay the respondents’ costs assessed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 566 of 2012

SZRGG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who was born in Australia on 12 April 2010 to Sikh parents who had themselves been refused protection visas. On 27 April 2011 the applicant applied for a Protection (Class XA) Visa which was refused on 16 August 2011. On 9 September 2011 the applicant, through his father, applied for a review of the delegate’s decision from the Refugee Review Tribunal. The Tribunal arranged a hearing which was attended by the applicant’s father on his behalf, and on 16 February 2012 determined to affirm the decision not to grant the protection visa.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of the alleged profile of his parents as Sikhs living in the State of Jammu and Kashmir. The essence of the concerns expressed by the applicant’s father as to his family’s safety were those that he had put before the delegate and the Tribunal in his own case. He claimed that he would be persecuted by both Muslims and Hindus, and that he could not move from his home state because he could not buy land elsewhere. He said that if he was able to have done that, he would not have come to Australia. But the Tribunal noted that, in fact, country information indicated that any Indian can buy land in any state.
The applicant’s father also alleged that he cannot make a living in Jammu and Kashmir and things were very difficult for his family. He told the Tribunal that he paid 10 lakh rupees for a trip to Thailand, Malaysia and Singapore as a precursor to his trip to Australia and for his trip to Australia, and he managed to bring with him between $4,000.00 and $5,000.00. The father told the Tribunal that he was a tourist bus driver, and the Tribunal concluded that:
“This indicates to the Tribunal that the applicant’s father’s business had been doing well, which is consistent with the statement in the statutory declaration provided with the visa application that the Sikhs are very hard-working and financially affluent in comparison to communities such as Hindus and Muslims. The Tribunal has considered the applicant’s father’s evidence that Sikhs who do well do not spend much time in Jammu and Kashmir. The Tribunal has also considered the independent information which states that the Sikh community in Jammu and Kashmir experienced problems of unemployment in 2001 […] However, although the Tribunal accepts that Sikhs have faced difficulties in the past in finding employment in the Jammu and Kashmir the evidence before the Tribunal is that the applicant’s father and his family ran a successful business for many years while living in Jammu and Kashmir. […] The Tribunal is also of the view that as the applicant is a baby aged 22 months, his father’s fears that the applicant would not be able to obtain employment are not well founded as they are very remote and highly speculative, given that it will be many years before the applicant seeks employment. “ 83 CB [84-85].
The Tribunal also dismissed the father’s claim that his son would experience discrimination at school, citing the Right of Children to Free and Compulsory Education Act 2009 that came into force on 1 April 2010. Again, the Tribunal found:
“The Tribunal is also of the view that as the applicant is aged only 22 months, it is speculative for the applicant’s father to claim that the applicant would experience discrimination in the education system, which he would not enter for another 4 years.” 84 CB [85].
The Tribunal considered general country information concerning the situation in Jammu and Kashmir which noted that tensions in the state had decreased as a result of de‑escalation of violence. The Tribunal also considered the claim by the applicant that he was in danger from militants but it noted that the applicant’s father had relocated within the state and did not accept that he would have relocated to the particular village he referred to if it had not been considered safe. Finally, the Tribunal considered a claim by the applicant’s father that he was at risk of persecution because of his claimed membership of the National Conference. Whilst not accepting that he was such a member:
“The Tribunal is of the view that in any case, as the National Conference is in power in Jammu and Kashmir, the applicant would not be targeted as the child of a member of a major party.” [92 CB 87].
On 14 March 2012 the applicant through his father filed an application in this court seeking review of the Tribunal’s decision. There were three grounds of application. These were:
“1.The Tribunal failed to consider that I shall be a victim of persecution for my religious belief as my parents were discriminated for the similar reason and made errors of law.”
The Tribunal did consider whether the applicant would be a victim of persecution for his religious beliefs and came to the conclusion that he would not. All the Tribunal is required to do is to give the claims consideration. It does not have to accept them.
“2.The Tribunal failed to consider that my father would be targeted by militants, Hindus and Muslims for my father’s religious and political belief and my life would be affected for similar reason and the Tribunal made errors of law amounting to jurisdictional errors.”
The same comments made above apply to this ground.
“3.The Tribunal did not consider my father as a credible witness for the persecution he experienced in India and made errors of jurisdiction.”
The Tribunal did not consider that the applicant’s father had suffered the persecution he claimed or that the fears that he alleged he held were genuine in all the circumstances, including the circumstances of the facts on the ground as revealed in the independent country information. This is not really a case of not believing the applicant’s father at all. In any event, it hardly bears repeating that matters of credibility are for the Tribunal “par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.
The applicant’s father appeared before me today. He claimed that the only matter he wanted to put to me was that the Tribunal did not consider whether or not his son could be or was an Australian citizen, and that this was an error of law going to jurisdiction. Regrettably for the applicant, this is not a tenable argument because the powers of the Tribunal are restricted by s.411 of the Migration Act 1958 (Cth) and relate, relevantly, to review of decisions of the delegate not to grant protection visas. Although the Tribunal has a duty to consider any matters which clearly arise on the evidence, but which may not have been entirely articulated (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]), it does not have a duty to cast around for any other type of visa for which the applicant may be entitled, in contrast to the Migration Review Tribunal, where that type of inquiry is often made.
The applicant might also be directed towards s.12 of the Australian Citizenship Act 2007 (Cth), in particular s.12(1):
“Citizenship by birth
(1) A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.”
and s.78 of the Migration Act:
“Children born in Australia
(1) If:
(a) a child born in Australia is a non-citizen when born; and
(b) at the time of the birth:
(i) one of the child's parents holds a visa (other than a special purpose visa); and
(ii) the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.
(2) If:
(a) a child born in Australia is a non-citizen when born; and
(b) at the time of the birth, each of the child's parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.”
In these circumstances I am unable to find that there are any grounds upon I can review the decision of the Tribunal and the application must be dismissed. However, before pronouncing on dismissal I believe that it is worthwhile making a point that could possibly be considered by the Minister.
This Court is in the frontline of applications for protection visas. It is a very heavy burden from which the members of the Court do not resile. Like all organisations placed under great strain, the court seeks ways and means by which some of that strain can be alleviated. The bringing of proceedings by infant children of parents who have had their protection visas refused is not an insignificant statistic and the claims are not limited to just one child. Frequently this Court sees people coming to it having made applications for more than one child. These applications are more often than not based on exactly the same allegations of persecution that were raised by the parents. One wonders why the delegate, the Tribunal and the court should be required to rehearse these arguments when they have all been previously dispatched, frequently by a final unsuccessful application to the High Court of Australia. One wonders why the Office of the Parliamentary Counsel is not able to draft the type of clause that would exclude these claims being repeated.
The application is dismissed. The litigation guardian of the applicant to pay the respondents’ costs assessed in the sum of $3,200.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 13 November 2012