SZROH v Minister for Immigration

[2012] FMCA 801

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 801

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in India – first applicant abandoning claims before the Tribunal – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 424AA, 425

SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) HCA 26

First Applicant: SZROH

Second Applicant: SZROI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1297 of 2012

Judgment of: Driver FM

Hearing date: 4 September 2012

Delivered at: Sydney

Delivered on: 4 September 2012

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second Applicant

Solicitors for the Respondents: Ms R Jones
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1297 of 2012

SZROH

First Applicant

SZROI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was dated 18 May 2012 on its face and certified on behalf of the Tribunal’s district registrar on 21 May 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants’ protection visas. There are two applicants, who are husband and wife. The relevant claims were made by the first applicant, the applicant husband. References to the applicant in this judgment are references to him. He claimed political persecution in India.

2. The following statement of background facts relating to the applicant’s claims is derived from the Minister’s written submissions filed on 31 August 2012.

3. The applicants came to Australia on 17 October 2011 on tourist visas. They are citizens of India, and are husband and wife.

4. In his application to the Department, the first applicant claimed that he would be persecuted by the BJP party if he were to be returned to India.  He claimed that in 2011, a developer had approached him to buy his land for a housing project.  When the first applicant refused that offer, a BJP party politician connected with that developer telephoned the first applicant to threaten him, including threatening to kidnap his sons.  The first applicant continued to receive threats from that politician and was harassed and humiliated at the marketplace by BJP “goons”. He claimed that he was forced into hiding and that his requests for protection from local police were refused.

5. The first applicant also claimed that, in 2005, he had been accused of being a terrorist by Hindu farmers because of his previous involvement with the Congress Party.

6. The second applicant applied for protection as a member of her husband's family unit.

7. A delegate of the first respondent refused the application for a protection visa on 20 January 2012[1].

   [1] Court Book (CB) 53-72

Tribunal’s decision

1. The Tribunal concluded that neither applicant was a person to whom Australia owed protection obligations and affirmed the decision not to grant the applicants protection visas.

2. The Tribunal rejected the first applicant's claims because it found that he did not subjectively fear persecution[2].  The Tribunal relied on the first applicant's statements during the Tribunal interview that:

   a)he came to Australia to work and would not fear any harm on his return to India; and

   b)he did not know what was written in his application to the Department for a protection visa (visa application form), and that he did not complete it himself.

   [2] CB 109 [45]

3. The Tribunal also relied on the second applicant's statement during that interview that she did not have her own separate claims for protection.

4. The Tribunal found that the first applicant had abandoned his previous claims to have a well-founded fear of persecution[3].  Accordingly, there was no other evidence to satisfy the Tribunal that the applicants met the criterion for protection visas under the Migration Act 1958 (Cth) (the Migration Act).

   [3] CB 109 [46]

5. These proceedings began with a show cause application that was filed on 14 June 2012.  The applicants continue to rely upon that application.  The application raises three grounds of review:

   1. 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.

   2. 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.

   3. The applicants satisfy the four key elements of the Convention definition as details in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

6. The application is supported by a short affidavit by the first applicant which I received, subject to relevance.  I also have before me as evidence the book of relevant documents filed on 13 July 2012. 

7. The applicants argue that the Tribunal failed to invite the applicants to comment on information pursuant to s.424A of the Migration Act. The “information” is not defined.

8. In my view, the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal. The asserted breach of s.424A of the Migration Act would fail because the Tribunal only relied on information given by the applicants.

9. Section 424A requires the Tribunal to invite comment on certain “information”, either in writing pursuant to ss.424A(1) and (2) (either before or after the hearing) or orally, during the course of the hearing, by following the requirements in s.424AA.

10. Section 424A of the Migration Act requires the Tribunal to give clear particulars of the “information” to an applicant and to provide an applicant with an opportunity to comment on that information. However, what will constitute “information” for the purpose of s.424A(1) is limited by the express exceptions in s.424A(3) as well as case law[4]. Critically, information that “the applicant gave for the purpose of the application for review” is expressly excluded[5].

    [4] e.g. SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) HCA 26

    [5] s.424A(3)(b)

11. The Tribunal relied on information:

    ·(given by the first applicant) that he did not complete his visa application form himself and did not know its contents [33];

    ·(given by the first applicant) that he came to Australia to work and would not fear harm if he were to be returned to India [35];

    ·(given by the second applicant) that she had no separate claims [37].

12. The Tribunal did not rely on any other information to reach its decision.

13. The information referred to (at [18] above) was given by the applicants at the Tribunal hearing, for the purpose of presenting arguments relating to the review. It was therefore information given “for the purpose of the application for review”. Accordingly, s.424A(3)(b) expressly excludes such information from engaging any obligation under s.424A(1).

14. The second ground is meaningless without particulars.  I invited the first applicant to make oral submissions in support of the application today.  He said he had nothing to say. 

15. The third ground appears, as the Minister submits, to be an attempt to agitate the merits of the Tribunal’s decision. The applicants have not identified any aspect of the Refugees Convention that was not addressed as required.

16. On my own reading of the Tribunal decision, there is no arguable case of jurisdictional error. The applicants were invited to a hearing before the Tribunal in accordance with s.425 of the Migration Act. They attended and gave evidence. The hearing opportunity appears to have been a fair one. The first applicant abandoned his claims for protection. In the circumstances, it was effectively impossible for the Tribunal to be satisfied that the applicants met the criteria for a protection visa.

17. The failure of the review application before the Tribunal was the inevitable consequence of the abandonment of the first applicant’s claims.  I see no arguable case of error by the Tribunal in the manner in which it dealt with these proceedings. 

18. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).

19. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks costs in accordance with the court scale in the amount of $3,239.  The applicant did not wish to be heard on costs.  When he appeared for today’s hearing, the first applicant confirmed that he was also representing the second applicant. 

20. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  5 September 2012