DZAAW v Minister for Immigration
[2011] FMCA 986
•14 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 986 |
| MIGRATION – Review of Refugee Review Tribunal (RRT) decision – whether RRT breached s.424A by not providing applicant with information – claim RRT failed to carry out its review function and failed to exercise its jurisdiction – claim RRT failed to consider four key elements of Convention definition. |
| Migration Act 1958 (Cth), ss.362A, 424, 424A |
| Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | DZAAW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 30 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 14 November 2011 |
| Date of Last Submission: | 14 November 2011 |
| Delivered at: | Darwin |
| Delivered on: | 14 November 2011 |
REPRESENTATION
| The applicant appeared on his own behalf |
| Counsel for the Respondents: | Mr Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 30 of 2011
| DZAAW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application, the applicant seeks review of a decision of the Refugee Review Tribunal (RRT). The Tribunal’s decision was made on 20 June 2011, and by its decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. In this instance, the applicant is a citizen of India, born 25 August 1986. He is a Hindu, and of the Jat caste. He entered Australia on 19 August 2009 on a valid business visa, and applied for a protection visa on 29 September 2009.
In support of his claim to the RRT, the applicant claimed he had been persecuted because of his Jat caste and because of his political background.In particular, he claimed that he was elected as a college President in 2008, but his opponent, a Mr Sunil, was the son of a government minister. Mr Sunil’s father was Mr Berduc, who was alleged to be a powerful member of the Congress party. The applicant says that after the election, Mr Sunil ransacked the college furniture and harassed innocent Jat students, and by reason of that behaviour Mr Sunil was expelled from the college. The applicant contends that as a result, he has been threatened on a number of occasions and received threatening phone calls from Mr Sunil; in particular, this occurred after the Congress party came to power in his local state, and it led the applicant to fear persecution, at least while the Congress party remained in power.
The delegate refused the application on 23 August 2010, and the applicant sought review of that determination by application to the Tribunal, made 17 September 2010. The Tribunal conducted a hearing on 25 January 2011, which culminated in its decision of 20 June 2011. The applicant was given written notice of that decision on 21 June 2011.
In considering the applicant’s application, the Tribunal had before it country information, the relevant documentary material, supplied in part by the applicant, and the evidence given by the applicant at the hearing. While there were some concerns about the applicant’s evidence, the Tribunal, in principle, accepted the principal factual matters contended by the applicant. However, the Tribunal did not accept that there was a real chance that the applicant would be persecuted on return to India by Mr Sunil, or any of his affiliates, by reason of the applicant’s political opinion.
In its reasons, the Tribunal identified, for instance, that the applicant had resided in his home town for six months prior to departing to Australia, which to the Tribunal, was indicative of the applicant not experiencing any subjective fear of harm, and further, that Mr Sunil would seem unable to locate the applicant while he resided in Jaipur. While the Tribunal accepted that the applicant received a threatening phone call in about December 2007, it observed that there had been no follow-up to the call, or any other threats or intimidation, after December 2007, despite the applicant returning to live in Ladnun from February to August 2009. The Tribunal also concluded that the applicant could not be involved in politics if he returned to India, and that that was further unlikely because the applicant’s difficulties took place in the context of student politics, almost four years ago.
Looking then to Mr Berduc; he is the father of the person the applicant is said to have offended, the Tribunal, while unsure of the relationship between Mr Berduc and Mr Sunil, accepted that statement. It also accepted that Mr Berduc might be a reasonably powerful politician. However the Tribunal was not satisfied that there was a real chance that the applicant would be seriously harmed by Mr Sunil, or his affiliates, or by Mr Sunil’s use of his father’s political connections.
In terms of the claim for fear of persecution by the applicant as a member of a particular social group, the Tribunal accepted that Jat caste members did constitute a group, however the Tribunal found on the evidence that the applicant was not targeted by Mr Sunil and his affiliates because of his membership of that group.
Furthermore, the Tribunal was not satisfied by reference to the country information that the applicant had any well-founded fear because of his membership of that group. Finally, although not strictly necessary, the Tribunal considered internal relocation and concluded that in this case, if necessary, it would be reasonable for the applicant to relocate within India.
The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention and accordingly he is not satisfied the criteria set out in s.362A of the Migration Act 1958 (Cth) (the Act).
The decision is a privative clause decision and can only be reviewed if jurisdictional error can be demonstrated. In this instance the applicant contends jurisdictional error on four grounds. Firstly, the Tribunal would not give the applicant, before the hearing, the independent information that it had about politics in India, contrary to s.424A of the Act. Second, the Tribunal failed to carry out its review function and to exercise its jurisdiction; particularised as, (a), “the Tribunal’s failure to consider the applicant who had been under immense and intimidating pressure from Congress Party and harassed because of the applicant’s activities and membership with BJP Party; (b), “in relation to the above, the Tribunal did not consider the applicant’s claim that if he has to go back to India in the near future, opposition will seriously harm him.”; Thirdly, that the Tribunal’s decision was unjust and made without taking into account the full gravity of his circumstances and the consequences of the claim; Fourth and finally, that the applicant satisfied the four key elements of the Convention definition and that the Tribunal had not considered this aspect of his application and therefore committed factual and legal error.
Ground 1
The first ground is premised upon an allegation that the Tribunal failed to give the applicant information as required under s.424A of the Act.
Section 424A of the Act relevantly provides:
“(1) Subject to subsections 2(a) and (3) the Tribunal must:
(a) give to the applicant in the way the Tribunal considers appropriate in the circumstances clear particulars of any information that the Tribunal considers would be the reason or a 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 the consequences of it being relied on in affirming the decision that is under review and;
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies and by one of the methods specified in section 441A or;
(b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person.
Subsection (3). This section does not apply to information:
(a) that is specifically about the applicant or another person and is just about a class of persons to which the applicant or other person is a member or;
(b) the applicant gave, for the purposes of the application for review or;
(ba) that the applicant gave during the process that lead to the decision that is under review other than such information that was provided orally by the applicant to the department.”
The first respondent, the Minister, accepts the information referred to in paragraphs 43 to 51 of the Tribunal’s reasons, was not given to the applicant with an invitation to comment or respond. However, it contends that it was unnecessary for it to do so. First it says that it was not information that was the reason or part of the reason for affirming the decision that was under review.
As it is submitted, the High Court has recently confirmed that for s.424A(1)(a) to be engaged the material in question should, in its terms, contain a rejection, denial or undermining of the review applicant’s claim to be a refugee, see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31.
In this case the political information confirmed much of the background of the applicant’s claims. That is that the Congress Party was in power in Rajasthan. Mr Burduc was in the Congress Government. He was a reasonably powerful politician. He had three sons, although it was never established that Mr Sunil was one of those three sons and that AVP and NSUI competed against either other in student elections.
The respondents concede that it was apparent that the political information was considered important by the Tribunal in corroborating the applicant’s factual claims.
However, while the Tribunal reached a different conclusion to the delegate in respect of some of those matters, the decision was ultimately affirmed for other reasons. Indeed, so much is evident because of the differing approaches between the Tribunal and the delegate.
There is nothing in the Tribunal’s reasons to suggest that it used the political information to come to the conclusion that there was not a real chance that the applicant would be seriously harmed by Mr Berduc or his affiliates on the applicant’s return to India, or for any other Convention reason. It follows that the political information was not, “the reason, or part of the reason, for affirming the decision” under review. The second contention under this head is that it was unnecessary for the first respondent to provide this information, because to the extent that it was not specifically about the applicant or another person it would have been exempt from the obligation created because of s.424A(3)(a). That provision exempts information that is not specifically about the applicant or another person, and is just about a class of persons of which the applicant or the other person is a member.
It is well settled that these words impose a single criterion; see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178. In this case the political information was not specifically about the applicant or another person, with the exception of the last sentence of paragraph 46 and paragraph 47. As was submitted notwithstanding there is no additional criterion, that information is, “just about a class of persons” or about, “the social and political conditions of the country concerned”. It is country information of the sort referred to by the High Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41– which need not be drawn to the attention of applicants for review. In any event, while the matter may have been observed by the Tribunal, it appears to have no causal link to the conclusion when associated with the country information of which notice was not required. The third contention on this ground was that the information was not needed to be provided, because to the extent that it was information the applicant gave for the purpose of the application for review, it would have been exempt from the obligation created on that ground.
Section 424A(3)(b) exempts information the applicant gave for the purpose of the application for review. In this case it is apparent from the Tribunal’s reasons that the applicant gave evidence to it about the Congress Party’s electoral success, Mr Burduc’s association with the Congress Party and the links between the NSUI and the Congress Party. Accordingly to the extent that those matters were also contained within the political information s.424A(3)(b) would exclude them from the obligation of s.424A(1); that is, if it had been engaged. The final contention by the respondents for the absence of necessity to provide the information was that to the extent it was information the applicant gave in writing during the process, that lead to the decision that were under review it was thereby exempt. Section 424A(3)(b)(a) came in to force on 29 June 2007 and it overcame the limits of s.424(3)(b) to the extent information is given during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the department.
It follows therefore that the information conveyed in the applicant’s statutory declaration would be exempt, which included information that Mr Burduc was a powerful Congress Party politician, a government minister and the ABVP and NSUI competed at the relevant college election. On that basis the only parts of the political information to which s.424A(3) would not apply if s.424(1) was engaged are references to Mr Patel being the current governor of Rajasthan, and a prominent congress party figure and former cabinet minister. The bibliographical information concerning Mr Gellot, and the bibliographical information concerning Mr Burduc. However none of this information has any causal link to the conclusion, or was of any consequence to the Tribunal’s decision adverse to the applicant’s claims. It follows in my view that ground one of the application has no substance and is dismissed.
Ground 2 and Ground 3
Ground two of the application asserts the Tribunal failed to carry out its review function and to exercise its jurisdiction. From inquiries made by me of the applicant in the course of the hearing, it appears that ground two and ground three traverse the same issues.
In his oral submissions the applicant simply sought to restate the case which he ran before the Tribunal. He was in effect seeking to challenge the Tribunal’s findings of fact, and seek to engage this court in a merits review. He has not been able to demonstrate any matters in support of the particulars, particularly those provided in ground two to the application. The Tribunal gave appropriate consideration to all matters that were placed before it, and there is from my review of the Tribunal’s decision nothing apparent on the face of it to indicate that it has not considered all the matters that it was required to consider. The determination of the facts of the matter were entirely within the view of the Tribunal’s remit, and it was entitled to consider and place such weight as it considered appropriate on that material. The conclusions drawn and findings made by the Tribunal were reasonably open to it on the evidence, and of themselves do not give rise to any jurisdictional error. Grounds two and three of the application fail.
Ground 4
The fourth ground of the application concerns the allegation that the Tribunal failed to consider the four key elements of the Convention definition. In this case the first element, that is the applicant was outside his country, was the subject of a finding by the Tribunal.
It found that the applicant was an Indian citizen and self-evidently present in Australia. Secondly, that he must fear persecution, a matter plainly considered by the Tribunal. Thirdly that the persecution must be for a Convention reason. This matter was also considered by the Tribunal. Finally, it also was relevant whether or not the applicant’s fear of persecution was for a Convention reason and was well founded and that there was a real chance of persecution.
Plainly the applicant’s fourth ground of his application is without substance as the Tribunal decision clearly demonstrated that the Tribunal considered each of the four matters required to be considered when determining whether or not the applicant satisfied a Convention definition. The fourth ground also fails.
In any event, even if the Tribunal were wrong and this court were wrong in its consideration of the applicant’s case, the Tribunal gave further consideration as to whether or not it would be reasonable for the applicant to relocate within India. In that respect it made a positive finding that indeed the applicant could relocate. That finding has not been challenged by the applicant.
In the circumstances the application fails; the application will be dismissed.
The applicant resists costs. The applicant’s principal contention relates to his personal financial circumstances. That matter provides no justification for a departure from the usual order.
Orders
That the application is dismissed.
That the applicant pay the respondent’s costs, fixed in the sum of $6,240.00.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 20 December 2011
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