SZLMD v Minister for Immigration and Citizenship [2008] FCA 1271

FEDERAL COURT OF AUSTRALIA

SZLMD v Minister for Immigration and Citizenship [2008] FCA 1271

Migration Act 1958 (Cth) s 425, s 426A Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 SZLMD and SZLME v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 813 OF 2008

BUCHANAN J

19 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 813 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMD

First Appellant

SZLME

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 19 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with 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 813 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMD

First Appellant

SZLME

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 19 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellants are husband and wife. They arrived in Australia on 28 March 2007 and applied for protection (Class XA) visas on 14 May 2007. The second appellant's claim for a visa rests entirely upon the fact that she is the spouse of the first appellant. In his application for a visa the first appellant explained why he left India and what he feared would happen if he returned in the following way: 'I left India because was subject to fearful demand of money by the thugs for being a businessman and when I sked [sic] for protection, the police asked for bribes. I refused to pay bribes because I believe that it is unlawful to pay bribes. I clearly told the police that I would never pay bribes and it is their duty to protect me. They refused to protect me from those thugs and as a result the thugs had an unwritten freedom to take all of my money and when I used to refuse them to pay, they used to damage my properties and threat to harm me. I was physically assaulted by the thugs several times. Thinking that I would not get effective protection in India, I departed India. … I would not be able to get protection of the authority without paying bribes. But I believe that it is unlawful to pay bribes and I am not willing to do so. I think, for this reason, the police would never come to my protection. This will allow the thugs and extortionists to do whatever they want to do with me. I will not be able to run a business in India and will not have the ability to run a business to earn my livelihood.' 2 The application also included the following questions and answers: '42. Who do you think may harm/mistreat you if you go back? The government and the extortionist. 43. Why do you think this will happen to you if you go back? The corruption in India is so wide spread that I do not have confidence on the authority that they will ever protect me without paying them bribes. The judiciary is also corrupt and there are serious backlogs. Even if I want to take legal actions, it will take years and years for them to hear my case. More over, this will inflame the things and the police against me and they will do more harm to me. 44. Do you think the authorities of that country can and will protect you if you go back? If not, why not? No. The authority will not. I have no confidence that they will protect me.' 3 The applications were refused by a delegate of the first respondent on 30 May 2007. Amongst the reasons given by the delegate was the following: 'It is clear from the applicant's claim that the government of India is in no way implicated in the perpetration of harm, which he claims to fear. The applicant has not provided any evidence to show that he was unable to access State protection as a result of the difficulties he faced other than his bare statement that the police refused to offer him protection because he refuse to pay them a bribe.' 4 The appellants applied to the Refugee Review Tribunal ('the RRT') on 20 June 2007 for a review of the delegate's decision. In the application for review the appellants gave their address for correspondence as 'PO Box 110 Gol Gol Hotel NSW 2738'. On 21 June 2007 a letter was sent to the first appellant by registered post addressed to 'PO Box 110 Gol Gol NSW 2738' acknowledging receipt of the application. On 19 July 2007 a letter was sent by registered post to the first appellant addressed to 'PO Box 110 Gol Gol Hotel NSW 2738' inviting the appellants to a hearing at 9.30am on 20 August 2007. A decision of the RRT which is dated 30 August 2007 but which was handed down on 25 September 2007 (which is therefore taken to be the date of the decision) records that the appellants did not attend the hearing. On 3 September 2007 a letter was sent to the first appellant by registered post addressed to 'PO Box 110 Gol Gol Hotel NSW 2738' advising that the decision would be handed down on 25 September 2007. On 25 September 2007, a letter was sent to the first appellant by registered post similarly addressed advising that the RRT affirmed the decisions of the delegate not to grant the appellants' protection visas. 5 In its decision the RRT said: 'The applicant was served with notice of the hearing by the Tribunal in accordance with the Migration Act. I am satisfied the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments before it and that he has effectively declined that opportunity.' 6 It recorded the appellants' claims. It said: 'I accept that there is corruption in the Indian police force. The applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. He did not provide any further information to support his claims nor did he give the Tribunal the opportunity to explore relevant aspects of his claims with him. Without further information from the applicant I am not satisfied that the applicant is a businessman or that he was subject to demands for money by thugs. Without further information I am not satisfied he asked the police to help him or that they asked for bribes or that the police did not help him or that thugs damages his property, threatened and harmed him.' 7 As to the second appellant the RRT said: 'No specific Convention claims were made by or on behalf of the second named applicant. The fact of her application therefore depends on the outcome of the first named applicant's application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.' 8 On 12 October 2007 the appellants applied to the Federal Magistrates Court of Australia ('the FMCA') for judicial review of the decision of the RRT. The application recorded that the first appellant received the RRT decision on 25 September 2007. The grounds of the application were stated as follows: 'The grounds of the Application are: 1. The Tribunal misunderstood or misconstrued the term, "political opinion" as it appears in the Refugees Convention. Particulars (a) The Tribunal failed to appreciate that opposition to official corruption can constitute a political opinion. 2. The Tribunal made findings in the complete absence of evidence. Particulars (a) The Tribunal erroneously found that the first applicant had not claimed in his application to the Department of Immigration, that his refusal to pay bribes to the police was due to, "moral or ideological or political objection". (b) It was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection. (c) In finding that was no evidence before it that the applicants were unable to access effective state protection, the Tribunal ignored the evidence of the first applicant that they had in fact been denied protection because they did not pay bribes. 3. The Tribunal failed to issue a meaningful invitation to the second applicant to attend a hearing pursuant to s 425 Migration Act. Particulars (a) The Tribunal failed to invite the secondary applicant to appear before the Tribunal separately. 4. The Tribunal failed to review the file of the DIAC Particulars (a) The Tribunal was obliged to review the information provided in the Department's file. It did not do so. Instead, it said that because the applicant did not appear before the Tribunal, it did not accept his claims. In absence of evidence, the Tribunal cannot do so.' 9 In light of their failure to appear before the RRT, the challenges made by the appellants were, in practical terms, doomed to fail unless they could first avoid personal responsibility for failing to appear before the RRT. Section 425 of the Migration Act 1958 (Cth) ('the Act') guarantees an opportunity to give evidence and present arguments to the RRT before an application for review is dismissed but s 426A of the Act permits the RRT to make such a decision, without extending a further opportunity, if an applicant does not appear when invited to do so. 10 There was no suggestion made before the FMCA that the appellants had not, in fact, received the correspondence from the RRT including the invitation that they appear before it. The only contention with respect to this issue was the suggestion that there was no meaningful invitation to the second appellant because the RRT had failed to invite her to appear before the Tribunal 'separately'. The suggestion was without any substance. In the letter to the first appellant dated 19 July 2007 the following was said: 'I am writing about the applications for review made to the Tribunal by: [The name of the first appellant was stated] [The name of the second appellant was stated] The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone. This letter is an invitation to the applicants listed above, to appear before the Tribunal to give oral evidence and present arguments.' 11 The appellants were also invited by this letter to send any new documents or written arguments. The earlier letter of 21 June 2007 had advised them to 'send us any documents, information or other evidence you want the Tribunal to consider'. It appears from the RRT decision that no material was sent. 12 Finally, it should be noted that in the application for review the first appellant signed a declaration which said: 'If this application includes more than one applicant, I undertake to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.' and the second appellant signed a declaration which said: 'Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application.' 13 In a judgment delivered on 21 May 2008 (SZLMD and Anor v Minister for Immigration and Anor [2008] FMCA 724) the FMCA rejected the grounds in the application for judicial review. Each was discussed. The FMCA concluded that no jurisdictional error had been demonstrated. 14 On 2 June 2008 the appellants appealed to this Court. The grounds of appeal are expressed as follows: '1. His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error it failed to appreciate that applicant-suffered harm at the hands of Muslim opponents only because of his religion (Hindu). The Tribunal did not understand the applicant's fear of harm and misapplied the law- affected the Tribunal's application of law. The Tribunal failed to assess the cumulative effects of separate incidents related with his claim for Protection Visa. 2. The Applicant was denied procedural fairness when Hon. Federal Magistrate failed to consider that the applicant did not attend the hearing scheduled on July 2007 due to difficulty to get any other transport from Griffith to Sydney. The applicant had intention to attend the Tribunal hearing. He missed the bus in the night from Griffith. There is no alternative way to reach Sydney in the next day morning. He had no money to pay air ticket. Applicant lives in remote area of Griffith. The Applicant had legitimate expectation that he will get another chance to be represented. The applicant claims that he was denied natural justice when the Tribunal made decision without giving further chance to give oral evidence.' 15 The first ground of appeal to this Court is contradicted by the first appellant's application for a protection visa and was unsupported by any further material provided to the RRT by the appellants. 16 The second ground of appeal represents another attempt to deflect responsibility from the appellants for their failure to appear before the RRT. For reasons further discussed hereunder it cannot be accepted. It is necessary for the appellants to do more than appeal to discretionary considerations. They must show jurisdictional error. 17 At the hearing of the appeal only the first appellant was present. His only contribution was to assert that he was unable to return to his home country and had no money. He addressed no submission or comment to either the RRT decision or that of the FMCA. 18 The appeal to this Court had attached to it a written submission made to the FMCA. Similar submissions were advanced again in writing in support of the appeal. In the latest written submission the following contentions were advanced. 'The appellants claim that the Tribunal misunderstood the term "political opinion" as it appears in the Refuge [sic] Convention. The applicant claims that he was subject to fearful demand of money from the thugs for being a businessman. like him, many Businessman is suffering and killed and harmed by these thugs. The Appellants asked for the State government protection but the authorities are ineffective and incompetent. The appellant cannot rely on the state protection. The Police are corrupt. The police would be willing to protect only if the applicants will provide bribes. The Appellant is the Victims of extortion and the local police cannot protect them. The Appellants claim that like them, hundreds of businessman have been killed and became victims of torture and extortion. The appellants claim that they a class of Social Group. The Tribunal failed to identify this type of social group, which are victims of thugs? The appellants claim that in a High Court case (Minister for Immigration and Multicultural Affairs v Respondent S 152/2003 205 ALR 487) It was said "the state is obliged to take reasonable reassures to protect the lives and safety of its citizens, and those measures would include an appropriate Criminal law, and provision of reasonably effective and impartial police force and judicial system".' 19 The quotation relied upon is extracted from Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26] but it is taken out of context. The paragraph in full reads: '26. No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.' 20 These observations do not assist the appellants. The material before the RRT did not support the first appellant's claims. Apart from the fact that they did not appear personally, the appellants had not taken advantage of the opportunity extended to them to provide further material to the RRT. The assertions contained in the written submissions to the FMCA and to this Court cannot substitute for this failure to present any case at all to the RRT. 21 The written submissions also contained the following: The appellants accept that they lost the chance to be represented because they failed to appear before the hearing. They accept that the Tribunal gave them chance to present more information about their claim. But the Tribunal did not realise that the appellants live in countryside. They have financial hardship to come to attend the hearing. They have no money to be legally represented. The applicants had a legitimate expectation from the Tribunal that it would give another chance to be represented.' 22 Consistently with this submission, the RRT decision records that no contact was made with it by the appellants. Any suggestion of a denial of natural justice by either the RRT or the FMCA (as the second ground of appeal suggests) is unsustainable. 23 No error in the decision of the FMCA has been identified. No jurisdiction error in the decision or processes of the RRT has been identified or appears from the material before the Court. The appeal to this Court must, accordingly, be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.