SZRUO v Minister for Immigration
[2013] FMCA 203
•3 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRUO v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 203 |
| MIGRATION – Review of Refugee Review Tribunal Decision – refusal of a protection (class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 424A, 424B(4), 441C(4) Federal Magistrates Court Rules 2001(Cth) r. 11.11 Migration Regulations 1994 (Cth) reg. 4.35(3) |
| Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 MZYMP v Minister for Immigration & Anor [2011] FMCA 884 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 S 1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539 SZORU v Minister for Immigration and Citizenship & Anor [2011] FMCA 182 |
| Applicant: | SZRUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2058 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 07 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person with the assistance of a Gujarati interpreter |
| Solicitors for the First Respondent: | Ms M. Stone of DLA Piper Australia |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The application filed on 21 September 2012 be dismissed.
The applicant’s litigation guardian pay the first respondent’s costs of, and incidental to, this application.
The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRUO.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2058 of 2012
| SZRUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 16 October 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 27 November 2012. The applicant elected not to file an amended application. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. The applicant elected not to file any written submissions.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration & Citizenship (the “Minister”) to refuse the Applicant a Protection (Class XA) visa. It is the decision of N. Isenberg dated 22 August 2012, RRT Case Number 1201581, that is the decision subject to review in the proceedings before this Court.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Stone appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book (“CB”), each item contains a Court Book reference for that material.
The applicant is a male citizen of India born in Australia on 1 April 2011 (CB 44). On 4 October 2011 the applicant applied for a Protection (Class XA) visa (CB 1 – 39). It should be noted that both the applicant’s parents have applied for Protection (Class XA) visas and been refused, and their applications for judicial review have been dismissed. The applicant’s parents also applied as family members of the applicant’s family unit, but their applications were found to be invalid pursuant to s. 48A of the Migration Act (CB 47 – 49). Accordingly, the applicant’s parents were not included on the application before the Tribunal and not included on the application before this Court. The applicant’s Protection visa application form was completed on his behalf by his father, who also appeared at the interview with the delegate of the Minister and the hearing before the Tribunal.
The applicant’s claims were, in effect:
a)The applicant would be harmed as a result of his parents’ experiences, which had formed the basis of their previous Protection visa application. The applicant’s father claimed that he was a supporter of the Bharatiya Janata Party (“BJP”) and a man named Iqbal, who was powerful and involved in the “Muslim Mafia” supported by the Indian National Congress Party, wanted to marry the applicant’s mother and had threatened the applicant’s father; and
b)The applicant’s father claimed the applicant would convert to Catholicism and be raised as a Catholic and this would continue in India.
On 16 January 2012 a delegate of the Minister refused the applicant’s application for a Protection visa (CB 59 – 66). The applicant applied for review of this decision in the Tribunal on 7 February 2012 (CB 67 – 70). The applicant was invited to attend a hearing held on 14 May 2012 where he was represented by his father (CB 108 – 110). The Tribunal’s decision in respect of the applicant’s parents was sent to the applicant in advance of the hearing before the Tribunal (CB 93 – 106).
The Tribunal wrote to the applicant on 9 July 2012 and invited him to comment on, or respond to, information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review (CB 112 – 114). The particulars of the information consisted of the applicant’s father’s oral evidence in relation to the applicant’s parents’ Protection visa application on 2 September 2009, which was said to be relevant because of its inconsistencies with the applicant’s evidence, given on his behalf by his father, in the present proceedings. Any comments or responses or any request for an extension of time to the Tribunal’s letter were to be provided by 1 August 2012.
The applicant’s father contacted the Tribunal by telephone on 1 August 2012 to seek an extension of time, to which he was advised that any extension of time request needed to be put in writing (CB 116). The applicant’s father sent a request for an extension of time by facsimile to the Tribunal on 2 August 2012 (CB 117). The Tribunal refused this request for an extension of time by letter dated 6 August 2012, but informed the applicant that it would delay making its decision until 20 August 2012 and any submissions it received before that date would be considered (CB 119 – 120). The Tribunal did not receive any further responses or submissions from the applicant or his father during that period.
On 22 August 2012, the Tribunal affirmed the decision of the delegate of the Minister to refuse the grant of a Protection (Class XA) visa to the applicant (CB 121 – 138). The Tribunal found:
a)The applicant’s father expressed interest in having the applicant converted to Christianity was not genuine and the applicant’s parents would not encourage the applicant to become a Christian (CB 134 – 135 at [64] and [65]);
b)It was not satisfied that the applicant’s parents’ attendance of church services in Australia or reading of Christian literature was undertaken other than for the purposes of strengthening the applicant’s claim to be a refugee and disregarded that evidence for the purposes of the application before it (CB 134 at [66]);
c)The applicant would not practice Christianity if he returned to India (CB 135 at [67]);
d)It did not accept that the applicant’s parents had adopted Christianity and the applicant would be persecuted on his return to India as a result of this (CB 135 at [68] and [69]);
e)Because the applicant’s claims about Christianity were central to his claim and the Tribunal was not satisfied the claim was credible, this cast doubt over the credibility of all of the applicant’s claims (CB 135 at [70]);
f)The applicant’s father’s evidence was vague and lacking in detail, as well as being inconsistent with his claims about the applicant’s parents’ own Protection visa application, which had been adopted at the present hearing. Some key aspects of the parents’ claim were not mentioned in the applicant’s claim (CB 135 at [71]);
g)It did not accept the applicant’s father was a truthful witness or that he had given a truthful account of his experiences in India. The Tribunal found that the applicant’s father’s evidence was not credible after cumulatively considering the inconsistencies and omissions therein (CB 136 at [76]);
h)It rejected all of the claims made by the applicant’s father regarding his experiences in India (CB 136 at [77]); and
i)In conclusion, there was no evidence there was a real chance the applicant would be threatened or killed in the reasonably foreseeable future if he were to go to India for any of the reasons put forward by his father (CB 137 at [78]).
The Tribunal was not satisfied, having considered the whole of the evidence, the applicant had a well-founded fear of persecution for a Convention reason if he went to India or that the applicant was a person to whom Australia had protection obligations. It found the applicant did not satisfy the criterion in ss. 36(2)(a) or 36(2)(aa) of the Migration Act. There was no suggestion the applicant satisfied the s.36(2) of the Migration Act on the basis of him being a member of the same family unit as a person who satisfied ss. 36(2)(a) or 36(2)(aa) who held a protection visa. Accordingly, the Tribunal found that the applicant did not satisfy the criterion for a protection visa.
Current Proceedings
The applicant pleads three grounds in his application filed 21 September 2012, being:
1. The Tribunal had no 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 made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
3. The applicants satisfy 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.
At the hearing in this Court on 7 March 2013 the applicant was represented by his father. There had been no written submissions filed by the applicant or his father and when asked if he had any submissions to make the applicant’s father indicated he had no oral submissions to make. It was explained to the applicant’s father that the Federal Magistrates Court operated quite differently from the Tribunal where the Tribunal Member asked him questions. The applicant’s father indicated that he still did not wish to make any oral submissions in support of the application.
Minister’s Submissions
The Minister submits that there first ground of the application is not particularised and too broad to be meaningfully responded to. To the extent that the ground intends to assert the Tribunal’s decision was unreasonable or illogical, the Minister contends that there is nothing in the Tribunal’s reasoning to support such an assertion. Further, if reasonable minds might differ in the result, the decision cannot be set aside for jurisdictional error as illogical, irrational or unreasonable merely because one conclusion has been preferred to another; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
In respect of the applicant’s second ground claiming that the Tribunal failed to consider an integer of the applicant’s claims, the Minister argues this cannot be made out as the Tribunal clearly considered all of the applicant’s claims and rejected them. The applicant’s claims as advanced by his father are two fold (noted at [6] above). First, it was claimed the applicant would be harmed due to his parents’ experiences in India, which was rejected by the Tribunal at [77] – [78] of its Decision Record (CB 136 – 137). Secondly, it was claimed the applicant would face harm because he would be raised as a Christian, which was rejected by the Tribunal at [66] – [69] of its Decision Record (CB 135).
In respect of the applicant’s third pleaded ground, the Minister submits that this ground seeks impermissible merits review.
The Minister submits that the Tribunal has also complied with s. 424A of the Migration Act, as the only information that could have enlivened the Tribunal’s obligations under s.424A was the information contained in the Tribunal’s decision made in respect of the applicant’s parents, insofar as it recorded evidence given by the applicant’s father in those proceedings which was not consistent with the claims being advanced by the applicant in respect of the current proceedings. The Tribunal’s obligations under s.424A(1) were discharged by the letter dated 9 July 2012 sent to the applicant (CB 112 – 114) as it put to the applicant the information, why it was relevant and sought his comments and response to the information.
The Minister submits that the Tribunal’s letter to the applicant dated 9 July 2012 provided him with the required time to respond to the information. Section 424B provides for the amount of time given to applicants to respond to an s. 424A letter. In respect of the applicant who is currently in Australia and not in detention the “prescribed period” commences when the person receives the invitation and ends 14 days after the day on which the invitation is received, pursuant to reg. 4.35(3) of the Migration Regulations 1994 (Cth). The Minister refers the Court to the authorities in S 1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 and MZYMP v Minister for Immigration & Anor [2011] FMCA 884. As the letter was sent by post, the applicant is taken to have received it 7 working days after the date the letter was sent, pursuant to s. 441C(4) of the Migration Act. The Minister submits the applicant was taken to have received the letter on 18 July 2012 and, consequently, the prescribed period of time ended on 1 August 2012. Accordingly, the applicant was given the prescribed period of time to respond.
The Minister further submits that the Tribunal’s decision not to grant the applicant an extension of time (CB 117) to respond to its letter dated 9 July 2012 does not disclose any jurisdictional error. Under s. 424B(4) the Tribunal may extend time for a response but is not obliged to so. The Minister submits the Tribunal’s discretion did not miscarry as it clearly considered the request for the extension of time and refused it as the applicant’s father gave no reasons as to why he needed the extension, meaning that other than the request itself, there was nothing for the Tribunal to take into account when considering whether to grant the extension or not. Moreover, the Minister notes that the Tribunal’s letter to the applicant dated 6 August 2012 (CB 119 – 120) nevertheless advised him that any submissions he made, received before August 20 2012, would still be taken into account. A decision was not made until 22 August 2012. The Minister contends that the refusal of the Tribunal to grant an extension of time did not lead to any practical injustice or unfairness; SZORU v Minister for Immigration and Citizenship & Anor [2011] FMCA 182, relying on Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627.
At the time of the proceedings before the Tribunal, the applicant was one year old. The Minister contends that, although the applicant was unable to present evidence at the hearing before the Tribunal due to his age, he was afforded procedural fairness pursuant to s. 425 of the Migration Act as his father was given the opportunity to present evidence on his behalf; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [102] – [104] per McHugh J and SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539 at [24] per Cowdroy J.
The Minister submits the application should be dismissed and the applicant’s father be ordered to pay the Minister’s costs.
Consideration
The applicant in these proceedings was born in Australia on 1 April 2011. His parents are citizens of India who had previously, unsuccessfully applied for Protection (Class XA) visas. The applicant’s father had completed his son’s application, which was based on his own claim for protection. At the First Court Date directions hearing on 16 October 2012 I made an order that the applicant’s father be appointed as litigation guardian for the applicant, pursuant to Rule 11.11(1) of the Federal Magistrates Court Rules 2001(Cth). At that directions hearing the applicant’s father expressed a desire to participate in the NSW RRT Legal Advice Scheme. Subsequently, the applicant’s father attended a conference with the allocated panel adviser and received advice.
Although leave was granted to file an amended application, the applicant’s father elected not to avail himself of this opportunity, nor did he file and serve any written submissions or any list of authorities for the purposes of the final hearing. When invited to make oral submissions the applicant’s father indicated that he had nothing to say and indicated that the Court could ask him any questions and that he would reply. It was explained to the applicant’s father that the proceedings in this Court were different to those in the Tribunal where the Tribunal Member conducted the hearing by asking him questions. It is acknowledged that the applicant is a self-represented litigant, however, procedure before the Court is for the applicant to make any submissions in support of his application. The Court’s role is limited to considering whether the Tribunal carried out its obligations in respect of the hearing and the judgment record, in accordance with the provisions of the Migration Act overall.
Ms Stone, appearing for the Minister, indicated that she relied upon her written submissions. I accept that those submissions comprehensively and accurately address the grounds of review raised in the application and need no further comment or amendment.
As this matter involved a self-represented litigant represented by a litigation guardian using a Gujarati interpreter, prior to hearing I reviewed the contents of the Court Book and, particularly, the Tribunal’s Decision Record. The Tribunal indicated that the applicant’s claim, as articulated by his father, was based on his father’s desire that the applicant would become a Christian/Catholic and that the father was a supporter of the BJP and would be persecuted if he returned to India. After the details of these two claims were examined by the Tribunal, the substantial finding of the Tribunal centred on the applicant’s father’s credibility. The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s father’s claims is a matter for the Tribunal: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67].
The Tribunal detailed the vagueness, inconsistency, confusion and unreliability of the applicant’s father’s evidence in a number of respects. The Tribunal’s reasons, which are the only evidence before the Court in relation to the conduct of the hearing, indicate the concerns that the Tribunal had in relation to the applicant’s father’s evidence, which was raised with him during the course of the hearing. The Tribunal did have regard to the applicant’s claims. It accurately summarised and dealt with those claims. It cannot be said that the Tribunal did not take into account any elements of the applicant’s claims in a manner constituting jurisdictional error. The applicant was unsuccessful because of a view the Tribunal took of the facts and, in particular, its findings that the applicant’s father was not credible.
On a fair reading of the material before the Court I am satisfied that no jurisdictional error is apparent and the application before this Court should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 3 April 2013
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