SZLLY & Anor v Minister for Immigration & Anor [2010] FMCA 43 (29 January 2010)

Last Updated: 12 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLY & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 43

MIGRATION – Review of Refugee Review Tribunal decision – Refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZLLY” and “SZLLZ”.

Migration Act 1958 (Cth), ss.91R, 91X, 424A, 424B, 424, 425

Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 258 ALR 434 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZLLY v Minister for Immigration and Citizenship & Anor [2009] FCA 185 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

First Applicant:

SZLLY

Second Applicant:

SZLLZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1773 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

22 December 2009

Delivered at:

Sydney

Delivered on:

29 January 2010

REPRESENTATION

Solicitors for the Applicant:

The first applicant appeared in person with the assistance of a Gujarati interpreter.

Counsel for the Respondents:

Ms N Johnson (solicitor)

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application filed on 24 July 2009 is dismissed.
(2) The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to this application fixed in the sum of $4000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1773 of 2009

SZLLY

First Applicant

SZLLZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicants are husband and wife. The first applicant has made specific claims for a Protection visa and the second applicant relies on these claims as a result of her family membership. For the purposes of this judgment, the first applicant will be referred to as “applicant”.
2. The applicant was born in India in January 1976. He is Hindu and of Gujarati ethnicity. He was educated for 12 years and owned a business called “Shriji Bangles” from January 1997 to March 2007.
3. On the applicant’s Protection (Class XA) visa application, he claims the following:
   1. that his father’s shop was burnt down and consequently his father suffered economic loss;
   2. that his father developed a mental illness and subsequently could not set up another business and died shortly after;
   100. that he started working at a cotton factory for a low wage;
   4. that he commenced thereafter in cotton trading in Ahmadabad, expanding into Maharashtra;
   5. the Gujarat government applied excise duties to transportation of cotton from other states and consequently the price of cotton increased;
   6. he lost customers, commission, resulting in debt and was harassed and threatened by his creditors;
   7. the applicant left Ahmadabad and found refuse in a small nearby town but the suppliers’ men threatened both him and his wife; and
   8. the applicant sought protection in Australia and was assisted by a friend so he could leave India.
4. A Court Book (“CB”) was prepared by the first respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
5. At the first court date directions hearing, the applicant was granted leave to file an amended application. Consequently, the applicant filed an amended application on 2 October 2009 which contains the following grounds:
   • 1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant contained in s.424A which relevantly states:
     • 424A applicant must be given certain information
     • 1. Subject to subsection (3), the Tribunal must:
     • a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
     • b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and
     • c) Invite the applicant to comment on it.
   • 2. The Tribunal failed to comply with s.424 of the Migration Act 1958.
     • a) The invitation was not given in accordance with ss.424(3)(a) and 424B of the Migration Act:
     • i) the invitation did not specify the way in which the additional information may be given.
     • ii) the invitation did not specify the period within which the information was to be given.
   • 3. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failed to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
   • Hence due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims.

Litigation History

6. The applicants arrived in Australia on 22 March 2007 and applied to the Department of Immigration & Citizenship for Protection (Class XA) visas on 1 May 2007. A delegate of the Minister refused to grant the applicants a Protection visa in a decision dated 15 May 2007 (CB 38-42). The delegate found that the applicant’s fears were “private and criminal in nature” and not due to any Convention related reason (CB 41.9). The applicant filed an application on 7 June 2007 with the Tribunal for review of the delegate’s decision (CB 43-46). By letter dated 10 July 2007 the initially constituted Tribunal invited the applicant to attend a hearing on 21 August 2007 to give oral evidence and present argument in support of their case (CB 50-51).
7. The initially constituted Tribunal received a facsimile transmission from the applicant on 20 August 2007 at approximately 6:27pm seeking an adjournment of the hearing because of financial hardship preventing the applicant to travel from Griffith to Sydney for the hearing. The applicant requested that the hearing be rescheduled to be heard in Griffith via video link (CB 52-54). In a letter dated 22 August 2007 the initially constituted Tribunal wrote to the applicant indicating that it was not willing to hold a hearing via video link to Griffith but invited the applicants to attend a rescheduled hearing in Sydney on 30 August 2007 (CB 58-59). The applicant responded to the invitation on the day of the rescheduled hearing, notifying the Tribunal that they were unable to attend (CB 60). The initially constituted Tribunal affirmed the delegate’s decision on 30 August 2007. That decision was quashed by orders of His Honour Perram J on 4 March 2009 due to a breach of s.425(1) if the Act: SZLLY v Minister for Immigration and Citizenship & Anor [2009] FCA 185.
8. The second constituted Tribunal invited the applicant to a hearing on 4 June 2009 to be conducted via video link from Griffith TAFE (CB 65-66). The applicant accepted this invitation on 21 May 2009 (CB 69-71). A staff member of the Tribunal telephoned the applicant on 1 June 2009 and informed him that the hearing would be postponed until 30 June 2009 (CB 72). The applicant advised the Tribunal that he would be leaving for Darwin on 7 June 2009 and would not be in Griffith on 30 June 2009. Following that, the Tribunal invited the applicants to attend a hearing on 30 June 2009 to be conducted via video link from Darwin (CB 74-75). The applicant subsequently attended this hearing to give evidence in support of his claims (CB 79-80 and CB 87, para. 32).
9. The Tribunal’s decision indicates that the determinative issues on review were identified by the Tribunal in the hearing and the applicant was given the opportunity to address these issues (CB 87-90, paras.46-51). The Tribunal member put to the applicant that despite his claims that his creditors were Muslim, it appears that the only reason he was targeted by them was because he owed them a substantial amount of money (CB 89, para 49). The Tribunal put to the applicant that the conflict did not appear related to religion and the reason that he left India was because he was unable to pay his debts (CB 90, para 49).
10. The Tribunal put to the applicant that on his own evidence he had been able to do business with his Muslim suppliers and buyers for some time and had found them to be good and trustworthy (CB 90, para. 49). When it was put to the applicant that the conflict did not appear to be related to his religion or the religion of his creditors the applicant did not respond (CB 90, para. 49). As the delegate of the Minister found that any harm feared by the applicant was not for any related Convention reason (CB 41.8) the applicant was clearly on notice as to the nature of the issues under review.
11. The Tribunal accepted most of the applicant’s key claims including that he had accrued debts and that he was threatened by his creditors (CB 91, para. 55). However, the Tribunal did not accept that the applicant’s suggestion that there was a religious dimension because he was a Hindu and his suppliers were Muslim (CB 91, para. 56). The Tribunal found that there was no evidence to indicate that the applicant’s fears of the debt collectors was Convention related (CB 91, paras. 57-58). The Tribunal found there was no evidence that the applicant would be denied State protection for a Convention reason (CB 92, para. 61). The Tribunal was not satisfied that the applicant’s claims to fear harm had any Convention nexus.

Consideration

12. The original application filed on 24 July 2009 contains four grounds of review which are formulaic in form and bear no relevance to the Tribunal decision under review. The second ground raises the issue of relocation however there is no statement within the Tribunal decision that makes any reference to the issue of relocation. At the first court date directions hearing, the applicant indicated his desire to participate in the court sponsored panel advice scheme and a panel advisor was allocated. The Court file indicates that a telephone conference occurred with the assistance of a Hindi interpreter. The file indicates that the applicant was not provided with an amended application. On 2 October 2009 the applicant filed an amended application, containing three grounds of review which are set out above. These again are formulaic and do not appear to relate to the Tribunal decision under review.

Ground 1

13. This ground contains the allegation that the Tribunal member failed to honour his “undertaking” to put information to the applicant pursuant to s.424A of the Act. The ground contained no particulars in respect of this issue, nor has the applicant made any written or oral submissions to support this claim. There is no reference within the decision record to suggest that such an undertaking was ever raised at the hearing or in any communication with the Tribunal and the applicants. Section 424A has no relevant application to the information relied upon by the Tribunal. The Tribunal’s findings that the applicant’s claims lack a Convention nexus is characterised by the Tribunals subjective appraisal thought process or determination. These issues do not constitute “information” for the purposes engaging an obligation under section 424A: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477. Consequently, ground one cannot be sustained and should be dismissed.

Ground 2

14. This ground claims the Tribunal failed to comply with s.424 of the Act as “the invitation” was not given in accordance with s.424(3)(a) and s.424B of the Act. There are no particulars pleaded in this ground, nor are there any written or oral submissions that identify the purported “invitation” given to the applicants to provide additional information to the Tribunal. Further, on a fair reading of the Tribunal decision and the Court Book there is nothing to indicate that the Tribunal issued to the applicant any form of document that could be characterised as an invitation to the applicants to provide additional information. Nor is there any reference in the Tribunal decision that could be inferred or suggested as an “invitation” of this nature.
15. Ms Johnson in her written submissions brings the Court’s attention to the recent High Court decision in Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 258 ALR 434 where it was held that the general power to “get information relevant to a review” and the specific power to “invite” in writing the giving of additional information are capable of co-existence without the latter being repugnant to the former. At [46] their Honours state

[46] The general power to “get” information and the specific power to “invite” in writing the giving of additional information are capable of co-existing without the latter being repugnant to the former. Further, an oral request for information would be authorised not only by s 424(1) of the Act but also by s 56(1), by reason of the operation of s 415 which has been explained above.

16. The High Court in Minister for Immigration and Citizenship v SZKTI (supra) noted that the requirements of ss.424(2), 424(3) and s.424B are important provisions in relation to procedural fairness, but stated that nothing in them detracted from the obvious purpose of s.424(1), the general terms of which enable the Tribunal member to obtain information from a person by telephone (SZKTI at [46]). Further, the specific power to issue an invitation to give additional information contained in s.424(2) does not grant the Tribunal general powers under s.424(1) to obtain any information that it considers relevant.
17. Upon review of the Court Book and in particular, the Tribunal decision, there is no reference to the Tribunal inviting the applicants to provide additional information pursuant to s.424(2). Consequently the failure to comply with s.424(3) and s.424B cannot be established. This ground cannot be sustained and should be dismissed.

Ground 3

18. This ground claims that the Tribunal failed to consider properly whether the applicants would suffer serious harm pursuant to s.91R(2)(a) of the Act if they were asked to relocate in India. Relevantly the section states:

Without limiting what is serious harm for the purposes of paragraph 1(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to persons life or liberty.

This ground contains no particulars nor were any oral submissions placed before the Court to support this allegation. As indicated above, the issue of relocation does no appear anywhere within the Tribunal’s decision, nor can any inference be established to suggest this was suggested or canvassed during the hearing. The applicant was provided with the opportunity to tender verified transcripts of the Tribunal hearing. However he has elected not to do so.

19. More importantly, the Tribunal did not make any finding as to whether or not the harm the applicant claimed to fear was sufficiently serious to amount to persecution, or involved systematic or discriminatory conduct. It was unnecessary for the Tribunal to pursue this avenue because it was not satisfied on the evidence before it that the applicant had experienced any harm for a Convention related reason. This ground cannot be sustained and should be dismissed.

Conclusion

20. Although the applicant is a self represented litigant, he has received assistance from a legally qualified panel adviser to view his case. The applicant has also availed himself of the opportunity to file and amended application which has clearly not been prepared on the basis of the legal advice provided to him. The amended application is formulaic and refers to matters which are regularly before this Court but those grounds bear no relation to the contents of the Tribunal decision. It is apparent at the Court hearing that the applicant did not comprehend the issues ventilated and declined to make any oral submissions in support of his review application.
21. I am satisfied that the submissions prepared and presented by Ms Johnson clearly address the issues contained in the amended application. On a fair reading of the Court Book and the Tribunal decision it is not apparent from the face of those documents that any jurisdictional error is apparent. Consequently the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 29 January 2010