SZTAO v Minister for Immigration

[2013] FCCA 1724

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1724

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZTAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1560 of 2013

Judgment of: Judge Driver

Hearing date: 25 October 2013

Delivered at: Sydney

Delivered on: 25 October 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M Alderton

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1560 of 2013

SZTAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 (Tribunal).  The decision was made on 12 June 2013.  The Tribunal affirmed a decision of a delegate Minister not to grant the applicant a protection visa. 

2. The applicant is from India.  He had made claims of political persecution.  He applied to the Minister’s Department for a protection visa on 30 August 2012.  The Minister’s delegate refused that application on 3 December 2012.  The delegate refused the application on the basis that the applicant had not attended an interview as requested and the delegate was not satisfied that his claims were genuine.  The applicant applied to the Tribunal for review of that decision. 

3. The application was received by the Tribunal on 21 December 2012.  On 16 May 2013 the Tribunal wrote to the applicant[1] inviting him to attend a hearing before the Tribunal on 11 June 2013.  The letter asked the applicant to contact the Tribunal immediately if he was unable to attend the hearing on the nominated date.  The letter also asked the applicant to note that if he failed to attend the scheduled hearing the Tribunal might make a decision without taking any further action to enable him to appear before it.  The letter made clear that the Tribunal was unable to make a favourable decision on the information it had at that point. 

   [1] court book (CB) 74

4. The Tribunal records, at [12] of its reasons[2], that the applicant did not provide any material to the Tribunal in addition to what he had provided to the Minister’s delegate.  The Tribunal records at [13] of its reasons[3] that he did not respond to the hearing invitation.  The Tribunal considered the written information that had been before the delegate.  This concerned the risks faced by Sikhs who seek an independent state of Khalistan.  In essence, while the Tribunal was prepared to accept the hypothetical possibility that some Sikhs of that class may have a well-founded fear of serious harm, the Tribunal was unable to be satisfied on the limited material before it that the applicant fell into that class of persons.

   [2] Court Book (CB), 83

   [3] CB 83-84

5. These proceedings began with a show cause application filed on 9 July 2013.  The applicant now relies upon an amended application filed on 16 September 2013.  The grounds of the application are:

   1. RRT has erred in their decision, as given on 01/05/2012 [sic].  As the applicant’s matter was not dealt in accordance with the principles of the natural justice, the learned member of the RRT himself confessed that the applicant has suffered the harassments, and his many of close relations were killed during the Sikhs uprisings in India, and the applicant is undergoing the stress and the persecutions by the hands of the authorities back in India.

   2. In the recent times the Amnesty International also quoted many stories regarding the state killings of the Sikhs in India, moreover there are so many reports given in human rights commission regarding the amount of the persecution and the killings of the Sikhs, it is submitted that many reports which appears in the international reports are not quoted in the matters of the Sikhs uprisings, it appears that the various governments are only hesitant to quote the Indian persecution, and do not quote them, because according to them the India is a secular Country, but in fact it is not so.  Although the constitution looks to be secular, but in the practical it is a theoretic state.  It is respectfully submitted that the RRT has beyond its jurisdiction and has committed an error of law as to why the applicant was pi point by some other claim, to which the applicant has no information, but this very finding of the RRT has resulted in a grave miscarriage of justice, putting the applicant in the shoes of some other refugee claimant.

   3. May the case was same; RRT I under legal obligation to ask the information from the applicant, regarding the above set finding.  This means that the RRT has gone into statement and claims of some other applicant.  The applicant is not concerned with claims of others.

   4. It is widely understood that All India Sikh student federation is banned by the Indian authorities like many other Sikh organisation, information regarding ASIIF is available on the Khalistan movement website.  Moreover, the applicant party in known nationalist Party. (errors in original)

6. The application also includes a three-page narrative which appears to reproduce the applicant’s protection visa claims.  The applicant further relies upon an affidavit filed on 9 July 2013.  I received that as a submission. 

7. I have before me as evidence the court book filed on 7 August 2013. 

8. The applicant lives at Leeton in south western New South Wales.  I gave leave for the applicant to appear today by telephone.  He was assisted by a Punjabi interpreter. 

9. The applicant told me that he had responded to the Tribunal’s invitation issued to him in writing.  He said that he wrote a letter which indicated his inability to attend the Tribunal hearing due to his remoteness from Sydney.  He told me that the letter was returned to him unopened along with the Tribunal’s decision.  That is a surprising assertion.  It appears from the Tribunal decision that the presiding member was unaware of any response to the hearing invitation.  There is no record in the court book of any response to the hearing invitation.  The applicant asserted in his oral submissions that his letter was correctly addressed to the Tribunal at Level 11 in Clarence Street.  It would be very surprising if the applicant’s allegation was true. 

10. I reminded the applicant that I had made orders on 31 July 2013, including an order giving the applicant the opportunity to file and serve affidavit evidence.  He has not done so.  I enquired of the applicant whether he was in a position to fax the alleged letter to me.  He was not.  On the basis of the evidence before me, namely the court book and the Tribunal’s decision, I find that the applicant did not respond to the hearing invitation. 

11. The applicant makes other assertions of procedural unfairness or other error.  He contends that there was a want of procedural fairness by reason of inadequate consideration of his claims by the Tribunal.  However, I am satisfied that the Tribunal gave what consideration it could to the limited material it had. 

12. The applicant’s third ground of review appears to be an assertion that the applicant’s claims were confused with the claims of some other applicant.  There is no foundation for that in the Tribunal’s reasons.  The balance of the amended application raises a contest over the merits of the Tribunal decision. 

13. The applicant’s affidavit, apart from raising issues of asserted persecution, asserts that the Tribunal inappropriately placed weight on simple typographical errors in his documents.  This appears to be a reference to [15] of the Tribunal’s reasons[4].  There the Tribunal referred to variations in the spelling of the applicant’s name.  I see no significance in that.  It was appropriate for the Tribunal to deal with variations in the applicant’s name for the purpose of establishing his identity. 

    [4] CB 84

14. The applicant also asserts that the Tribunal decision is vitiated by an apprehension of bias.  There is, however, no evidentiary support in contention. 

15. The applicant has failed to persuade me that there is any arguable case of jurisdictional error by the Tribunal. 

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

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not oppose an order for costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:     29 October 2013