SZCPH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 339 (31 March 2005)

Last Updated: 8 April 2005

FEDERAL COURT OF AUSTRALIA

SZCPH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 339

SZCPH AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 179 of 2005

ALLSOP J
31 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 179 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCPH FIRST APPLICANT SZCPI SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	31 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	the application for an adjournment to obtain documents from India be dismissed;
2.	the applications for an extension of time to file an application for leave to appeal and the application for leave to appeal from the orders of the Federal Magistrates Court of 21 January 2005 be dismissed; and
3.	the applicants pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 179 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCPH FIRST APPLICANT SZCPI SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	31 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from orders made by a Federal Magistrate summarily dismissing an application for review made by the applicants in respect of a decision of the Refugee Review Tribunal (the "Tribunal"). The decision is interlocutory because it was one for summary dismissal.

2 Some background is necessary in order to understand the nature of the application before the Federal Magistrate and in order to understand my reasons.

3 The applicants are husband and wife. They are citizens of India. They arrived in Australia in February 2003. Shortly thereafter they lodged an application for protection visas with the Department. After a delegate had refused the grant of those visas, the applicants applied for review to the Tribunal.

4 The applicants' claims were set out at pages 4 to 6 of the Tribunal's reasons. Briefly, they were as follows. They were Hindu by religion and, as business people in a Muslim-dominated area called Neroda Ahmedabad in India, the male applicant became the victim of Communism, in part because of his ethnic group and religion. Further, the male applicant said that extremists of Muslim parties, in particular the Muslim League, harassed him because of his good business in the Muslim area.

5 The male applicant said that he gradually began to receive life-threatening calls and demands for ransom. Complaints that he made to the police were, he said, ignored. He said that after the Gujarat train tragedy in 2002, he suffered an attack on his life by Muslim extremists who beat him up severely, causing his hospitalisation. These matters were contained in statements produced to the Department by the applicants' then adviser.

6 On 25 September 2003, the Tribunal wrote to the applicants stating that it had considered all the papers and that it was unable to make a favourable decision on the information before it. The applicants were invited to attend the Tribunal to give oral evidence and present arguments on 4 December 2003.

7 On 25 November 2003, the Tribunal was advised in writing that the applicants did not wish to attend and give evidence and they would like the Tribunal to proceed to make a decision on the papers. The Federal Magistrate referred in his reasons to the applicants saying to him that this was done on the advice of their then Migration agent. That left the Tribunal in the position of having to come to a decision without the assistance of either of the applicants and without the assistance of any further information from them.

8 The structure of the Act is such that the Tribunal, like the Minister, is obliged to follow s 65 and s 36 of the Act. Under s 65, the Tribunal must consider the application and the material before it, then it must attempt, from that material, to assess the material, and reach or not reach a state of satisfaction. The state of satisfaction referred to by s 65 concerns all the relevant criteria in relation to the visa. One of those criteria set out by s 36 is whether Australia owes protection obligations to the non-citizen by reason of the Convention and Protocol concerning refugees. If the Tribunal was not satisfied that Australia did owe such protection obligations, it was obliged by the Act to refuse a visa. If it was satisfied of all relevant criteria, it was obliged to grant a visa.

9 It is important to understand that the Tribunal was not obliged to investigate the claim on behalf of the applicants. It was obliged to consider the material put forward by the applicants to it in order to assess whether it was satisfied of the criteria to which I have referred.

10 In this case, the Tribunal looked at the material put forward by the applicants, looked at relevant country information concerning India, and formed the view that on the material available, it was not as yet satisfied of the legitimacy of the claims for protection. The Tribunal set out the reasons why it was not satisfied on the material. It stated as follows:

The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicants are in genuine fear of persecution and that there is a real chance that they will be persecuted on returning to India.

The Applicants claim that as Hindus they have been threatened by Muslim extremists. The Tribunal notes and accepts the country information outlined above which indicates that there is violent clashes between Muslims and Hindus in parts of India. The Tribunal also notes that Hindus are a distinct majority in India and that Muslims constitute a minority group.

The Tribunal would have wished to explore with the Applicants their claim to have been specifically targeted by Muslim extremists as opposed to have been caught up in communal violence. The Tribunal would have also wished to explore with the Applicants their claim that after they relocated to another part of India they continued to be pursued by Muslim extremists. The applicants provide no details as to where they claim to have relocated to and when they relocated.

As it stands on the limited, vague and unreliable evidence set out in the protection visa application the Tribunal cannot be satisfied that the Applicants were in fact targeted by Muslim extremists the Tribunal is unable to be satisfied on the limited and generalised information before it that the Applicants did attempt to relocate but were pursued by Muslim extremists and that the Applicants were unable to avail themselves of state protection.

Accordingly the Tribunal is not satisfied, on the evidence before it, that the Applicants have a well-founded fear of persecution within the meaning of the Convention.

11 These reasons of the Tribunal for not being satisfied were apparently rational. Given that the Tribunal had been given no further assistance by the applicants, it is difficult to understand how it could be argued, in these circumstances, that there was any jurisdictional error. The Tribunal, apparently examined the claims and material put forward by the applicants; was left in a state of doubt; invited the applicants to attend, which invitation was declined; and then provided reasons why it was not satisfied of all relevant criteria.

12 The application for review before the Federal Magistrates Court provided no grounds which could be understood to be jurisdictional error. The claims and the grounds of the application were as follows:

The applicant claims:

1.	We are not satisfied with decision of the RRT because it is not correct and liable to be setaside.
2.	We request the honourable Court to qwush the decision of the RRT and remit it for further consideration.
3.	Applicant’s costs be given by the respondent.

The grounds of the application are:

1. We genuinely believe that the member of the RRT has incorrectly assessed our application of review and made a wrong decision.
2. That decision of the RRT involved an error of law.
3. That all the material cats on the file has not been considered before making the decision.
4. That we still have fear of persecution by opposite group on our return to home country and we are the person to whom the protection visa shall be granted on convention grounds but the member of the RRT has refused to accept it.
5. A detailed submission will be filed further.

13 The terms of the reasons before the Federal Magistrate were as follows:

1.

This is an application for summary dismissal of the Applicants application for review of a decision of the Refugee Review Tribunal. That decision affirmed a decision of the delegate of the Minister not to grant to the Applicants a protection visa. The decision was handed down on 14 January 2004. The Applicants consulted one Ajay Kumar, migration agent, to act for them. They gave his name and address as the place to which documents should be sent.

2.

They lodged an application to the Refugee Review Tribunal and were advised of the hearing date. The Applicants say that their migration adviser advised them not to attend the hearing. It is well known in this court that a decision not to attend a hearing of the Refugee Review Tribunal does an Applicant a serious disservice. I cannot see any possible reason why a migration agent would be so ill-advised as to inform a client that the client would be better off if he or she did not attend the hearing of the Refugee Review Tribunal. It is a serious error.

3.

The Applicant has said that because he lived in Griffith he was not able to take advantage of the pilot legal advice scheme. A person telephoned him last July but due to his lack of knowledge of English he was unable to understand him. Mr Chami for the Respondent has pointed out that that was seven months ago and the Applicant should have taken some steps to obtain legal advice especially when it was to be made available to him free of charge.

4.

The Applicant’s application does not set out any particulars other than a complaint that the Tribunal did not consider the facts at least in a way that the Applicants wished. There is no evidence that the RRT decision involved an error of law. There is no evidence that the Refugee Review Tribunal failed to accord the Applicant procedural fairness. They invited him to a hearing but he did not go based on wrong advice but the Tribunal could not know that. They sent the notice of hearing to the address that they were given in plenty of time. The Tribunal considered the matters that were before it but in the absence of further evidence from the Applicant the Tribunal was not able to make a decision in his favour. There is no reviewable error on the part of the Refugee Review Tribunal.

5.	The Respondent has appropriately sought summary dismissal of the application. The application is dismissed.

6.	The Applicant is to pay the Respondent's costs of the application in the sum of $2000. I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation. The application, of course, is dismissed.

14 In the circumstances before him, I see no error of principle in the way the Federal Magistrate approached the matter. On the material that is not and has not been controverted, there could be no denial of procedural fairness in circumstances where the applicants have failed to take up an invitation to attend. The country information referred to by the Tribunal was general country information about India which could not, on any view, be required to be drawn specifically to the attention of the applicants, in particular in circumstances where they decline an opportunity to attend a hearing. I see no error in the approach of the learned Federal Magistrate.

15 The applicants filed submissions today on the success of the appeal should they be granted leave. Those submissions provide no real basis for any application for leave. There is an assertion that the Tribunal erred in law. There is an assertion that there were fundamental errors in the factual approach. There is a reference to Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 without any evidential foundation or other submission to make that case relevant. There is an assertion that the Tribunal failed to investigate the claims through the Department of Foreign Affairs or any other independent sources. There was no such statutory obligation on the Tribunal. The obligation was upon the applicants to put all their material forward to the Tribunal to allow it, if it could, to reach a state of satisfaction.

16 There was a claim that there was too heavy a reliance upon country information and that there was a failure to internalise the circumstantial grounds of the review application. There is no foundation to any claim that the Tribunal failed to attend to the material before it. There are generalised statements as to jurisdictional error and various cases in this Court and the High Court. There is an assertion of a denial of procedural fairness, which I have rejected.

17 Basically, the submissions asked for another opportunity to attend before the Tribunal to give oral evidence. The authority of this Court and of the Federal Magistrates Court is not to control the procedures of the Tribunal. The Tribunal gave the applicants an opportunity to attend, which was not taken. The Tribunal reached a decision. The authority of the Federal Magistrates Court and of this Court rests upon the existence of any jurisdictional error in the Tribunal's approach. I see no basis for any conclusion that any such jurisdictional error arguably existed.

18 The application for leave to appeal requires an extension of time. For the reasons I have given, I cannot see any error in the approach of the learned Federal Magistrate, and leave to appeal, in my view, is futile.

19 The male applicant asked for further time this morning to obtain further documents from India. I took this as an oral application for an adjournment of this hearing. There is no point in such an adjournment. Documents as to the current position in India are irrelevant to this application. This Court has no authority, in this application or at all, to decide the factual questions as to whether a visa should be given. That is the province of the Executive branch of government, being the Department and the Tribunal. No such documents could have any bearing upon the application before me.

20 For the above reasons, the orders that I make are as follows:

(1) the application for an adjournment to obtain documents from India be dismissed;

(2) the applications for an extension of time to file an application for leave to appeal and the application for leave to appeal from the orders of the Federal Magistrates Court of 21 January 2005 be dismissed; and

(3) the applicants pay the respondent's costs.

21 I should add that only the male applicant attended today and on the previous occasion this matter was before the Court. The other applicant was said by the male applicant to be his wife, which is borne out by the file. He has appeared on both occasions on his and his wife's behalf, and I have not made any formal orders in relation to that, but it simply should be noted.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 7 April 2005

The male applicant appeared in person with the assistance of a Hindi interpreter.
Counsel for the Respondent:	Ms O Mak (Slr)
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 March 2005
Date of Judgment:	31 March 2005