SZOIX v Minister for Immigration & Anor [2010] FMCA 859 (25 October 2010)

Last Updated: 3 November 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIX v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 859

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.425, 426A

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62

Applicant:

SZOIX

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG841 of 2010

Judgment of:

Barnes FM

Hearing date:

25 October 2010

Delivered at:

Sydney

Delivered on:

25 October 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG841 of 2010

SZOIX

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 26 March 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant filed an application in this Court on 16 April 2010 with an accompanying affidavit. He filed an amended application on 15 July 2010. He did not file written submissions or make oral submissions other than to confirm that the grounds he sought to rely on were those in the amended application. I have considered the material before me and the first respondent’s submissions in relation to the grounds in question.
2. The applicant, a citizen of India, arrived in Australia in April 2007 as the holder of a student visa. He applied for a protection visa in November 2009. He claimed to fear persecution in India by reason, in essence, of his involvement in the All India Sikh Student Federation and as a supporter of the Khalistan movement. He also claimed that he and his friends were suspected by the authorities of having links with Pakistani Intelligence (the ISI).
3. The applicant was invited to attend a Departmental interview but did not do so. The delegate of the first respondent refused his application noting, among other things, a lack of specific detail in his statement in support of his protection visa application.
4. The applicant sought review by the Tribunal. In his application for review he provided one address as his residential address and his address for correspondence. He did not provide any other contact details.
5. The Tribunal wrote to the applicant acknowledging receipt of his application and sent a further letter dated 25 February 2010 advising him that it had considered the material before it, but was unable to make a favourable decision on that information. It invited him to attend a hearing scheduled for 24 March 2010 at a time and location specified and advised that if he did not attend, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. This letter was addressed to the only address provided by the applicant and appears to have been sent by registered post. The applicant did not attend the Tribunal hearing at the date, time and place specified.
6. In its reasons for decision the Tribunal observed that neither of its letters to the applicant had been returned to the Tribunal as at 24 March 2010, that the applicant had not provided any mobile telephone number or other contact details or details of an authorised recipient. In circumstances where it had sent the invitation to the only address (a residential address) provided, the Tribunal decided pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) to make its decision on the evidence available to it without taking any further action to enable the applicant to appear before it.
7. The Tribunal summarised the applicant’s claims as set out in connection with his protection visa application, as a claim to fear persecution “from the Indian authorities, particularly the security agencies, as well as Hindu extremists”, including his claim that in the past he had been targeted “because of his membership of the All India Sikh Student Federation and of the Shiromani Akali (A) Party, in other words, because of his financial support and political involvement in Sikh separatist groups”. It set out his claim that he was a “religious Sikh” and that the Indian authorities and Hindu extremists had “historically mistreated the Sikh community”. It summarised his claims about past harm, including “monitoring, interrogation, and mistreatment by ...security agents and intelligence officials; pressure to desist from political activities; disruption to his business and normal life; and physical assaults and... false charges” which had been dismissed. It recorded that he claimed to fear being killed if he returned to India.
8. However the Tribunal also referred to the fact that the mere fact that a person claimed to fear persecution for a particular reason did not establish the genuineness of such asserted fear, that it was well-founded or for the reasons claimed.
9. It was satisfied that the applicant had had an opportunity to present his case, having regard to the hearing invitation, but found that the applicant’s statement in support of his protection visa application contained “a number of vague [and] unsubstantiated assertions”.
10. The Tribunal set out matters about which it had insufficient information, including about “the applicant’s claimed involvement and profile in promoting Sikh rights”, clarification of his claim about being a religious Sikh and how this related to his refugee claims, as well as clarification of other specified matters such as his commitment and activities in this respect.
11. It also referred to the absence of “[p]articulars and a clear chronology” of the claimed persecution that the applicant had referred to in his protection visa application and the absence of details in that respect, as well as to the absence of details as to the “consequences of such harm for the applicant and his family” and about the circumstances of his travel to Australia, as well as insufficient details in relation to his “fears regarding his return to India”.
12. The Tribunal found that “[o]n the limited evidence before it, and without further details and clarification [it was] not satisfied that the applicant [was] a politically active Sikh, who ha[d] supported separatist groups” or was perceived as such. Nor, on such evidence, was it satisfied that the Indian authorities had harmed the applicant in the past in the manner claimed, subjected his friends and family to threats or other harm, that he had ever required protection from such harm or that he “ha[d] any political or other interest that may motivate him to engage in relevant conduct if he return[ed] to India”.
13. In light of such uncertainty, the Tribunal found that it was not satisfied that the applicant faced a real chance of Convention-related persecution. It affirmed the decision not to grant the applicant a protection visa.
14. As indicated, the applicant filed an amended application in these proceedings on 15 July 2010. Under the heading “The grounds of the application” the applicant set out the claims that he made in the statement accompanying his protection visa application. Insofar as the setting out of such claims may be taken to seek merits review, merits review is not available in this Court.
15. Thereafter there appears a number “1” and what appears to be a ground that involves a submission that “in the refugee law and in the general laws of the refugee any person who can not (sic) be given protection in any way can be given the protection”. It is claimed that applicant’s family was under “constant harassments (sic)” and that the Tribunal did not take into consideration the fact the applicant was “an active member of the political party” and “a person of importance”. He claimed his relatives were arrested and he was “wanted by the authorities”, that his case was within “the definition”, which I take to be intended to be a reference to the definition of “refugee” in the Refugee Convention and that his “case was not considered by the [Tribunal]”.
16. Insofar as the applicant asserts factual matters this does not establish jurisdictional error. This otherwise appears to be a contention that the Tribunal did not take into consideration aspects of his claims. However the Tribunal set out in detail the applicant’s claims as made in connection with his protection visa application and there was no suggestion that he made claims in any other form either to the Department or the Tribunal. In its findings and reasons the Tribunal expressed specific concerns in relation to vague and unsubstantiated aspects of there claims and described matters about which it had insufficient information, which it listed. It was in those circumstances that on the limited evidence before it the Tribunal was unable to be satisfied of the truth of the applicant’s claims. It made those findings in circumstances where the applicant had been extended an invitation to attend a Tribunal hearing but had not done so.
17. Given the applicant’s failure to attend the hearing, the inability of the Tribunal to be satisfied that he met the criteria for the class of visa for which he applied on the limited material before it is not such as to demonstrate that it failed to have regard to relevant considerations. The Tribunal’s obligation is to consider whether it can be satisfied of the criteria for the class of visa for which the applicant has applied. It has not been established that the Tribunal erred in the approach it took to determine whether it was so satisfied consistent with the observations of the Full Court of the Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (and see SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62).
18. No jurisdictional error is established on the basis contended for in the paragraph marked “1” in the amended application.
19. The next paragraph in the amended application elaborates on this claim, contending that the Tribunal “did not make findings in relations (sic) to these claims” about “whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis”.
20. However, as set out above, on the limited material before it the Tribunal was unable to be satisfied of the truth of the applicant’s claims about past events and the basis for his claimed fear of persecution. In such circumstances it was under no obligation to consider whether events about which it was not satisfied might occur again.
21. As the first respondent submitted, it is not that the Tribunal failed to consider the applicant’s claims and whether they gave rise to a risk of future harm or a well-founded fear of persecution, but rather that due to insufficiency of evidence it could not be satisfied of the truth of the applicant’s claims and hence it could not be satisfied that the applicant had a well-founded fear of persecution under the Refugees Convention.
22. No jurisdictional error has been established on this basis.
23. For completeness, in written submissions the first respondent addressed the possibility that the applicant’s affidavit was also intended to raise a ground of review insofar as it referred to the Tribunal failing to consider country information and basing its “judgment on the grounds which [we]re not applicable”.
24. The affidavit reiterated aspects of the applicant’s claims and seemed to suggest that the Tribunal should have had regard to country information in relation to the lot of Sikhs in India.
25. However, while the Tribunal understood that this was an aspect of the applicant’s claims, on the limited information before it and having regard to the applicant’s failure to attend the Tribunal hearing to elaborate on his claims, it was not able to be satisfied of the truth of his claims. It did not cite or rely on any independent country information. Given that it could not be satisfied of the truth of the applicant’s claims, it was not necessary for it to go on to address country information which may have been relevant had it been able to be satisfied of the truth of all or some of the applicant’s claims. No jurisdictional error is established on this basis.
26. Finally, there is nothing in the material before the Court to suggest that the Tribunal failed in any way to comply with its obligations under the Migration Act, in particular its obligation in s.425 of the Migration Act to invite the applicant to a hearing.
27. As no jurisdictional error has been established the application must be dismissed.
28. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 November 2010