M47 of 2005 v Minister for Immigration
[2007] FMCA 1278
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M47of 2005 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1278 |
| MIGRATION – Refugee Review Tribunal – whether claims considered – s.424A – application dismissed. |
| Migration Act 1958, s.424A |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 231 ALR 592 |
| Applicant: | APPLICANT M47 OF 2005 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE/MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms Moore |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 3 January 2007 and amended on 19 April 2007 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1 of 2007
| APPLICANT M47 OF 2005 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 3 January 2007 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 December 2006 That decision affirmed a decision of the first respondent’s delegate refusing to grant a protection visa to the applicant.
The applicant is a 33 year old male citizen of India. He arrived in Australia on 23 July 2003 as the holder of a business visa. On
18 August 2003, the applicant applied for a protection visa. On
19 November 2003, a delegate of the first respondent refused the protection visa application.
On 15 December 2003, the applicant applied to the Tribunal for review of the decision of the delegate. On 17 December 2004, the Tribunal handed down its decision affirming the delegate’s decision. The applicant filed an application for judicial review in this court. On
13 April 2005, the application was dismissed by a registrar due to the applicant’s non-appearance at a directions hearing. A new application was then filed in the High Court and transferred to this court. On
28 April 2006, orders were made by consent quashing the Tribunal decision handed down on 17 December 2004 and remitting the matter to the Tribunal for determination according to law. On 7 December 2006, the Tribunal handed down its second decision affirming the delegate’s decision.
On 3 January 2007, an application for judicial review of the Tribunal’s decision and a supporting affidavit were filed in this court. On
17 April 2007, the applicant filed an amended application and contentions of fact and law and, on 21 May 2007, the first respondent filed contentions of fact and law.
Initial claims
The applicant said in his protection visa application that he is a Muslim of Tamil ethnicity who had been a business owner from 2000 to 2003. In a statutory declaration attached to the application, the applicant claimed that his brother in law, Sidiq, was an active worker in the Muslim community. There were riots in 1993 and the Hindu leader, Murugan, was murdered. The police suspected Sidiq but he absconded. The police came many times to the applicant’s home, which was also Sidiq’s home, to try to arrest him. The applicant was questioned by the police so often that he lost his job. Sidiq was also suspected of the murder of the wife of another Hindu leader. The police and Hindu RSS harassed the family. The applicant and his father in law were threatened with murder by the police and the Hindu RSS. The applicant petitioned the chief of police but was assaulted and threatened with death if he complained to higher authorities.
The applicant also claimed that, as he had lost his job, his friends found him work at the Tamilnadu MMK. On 22 June 2003, a leading member of the RSS was stabbed by a Muslim, Basha. A police inspector came to the TMMK office looking for Basha. When the applicant said that Basha never went there, the inspector asked the applicant to come to the police station with the area organiser of the TMMK, Jafarullah. They went to the police station later that evening. The inspector and Jafarullah started arguing. At that time, a crowd of people had attacked the owner of a nearby restaurant who was also the district secretary of the RSS. The inspector blamed Jafarullah and arrested him with four other members of the TMMK. They were all sent to prison.
The applicant claimed that, on 23 June 2003, the inspector told him that he would be killed if he gave evidence in favour of Jafarullah. Then the TMMK told the applicant that he would be burned if he did not give evidence for Jafarullah. On 27 June 2003, the Hindu RSS set fire to the applicant’s house. He and his wife and others escaped. The applicant fled to Madras. Later, he got a message from his wife saying that both the Hindu RSS and the TMMK had decided to have him murdered by professional thugs. The applicant then fled to Australia.
The Tribunal’s decision
The Tribunal wrote to the applicant on 28 August 2006 pursuant to s.424A of the Migration Act 1958 (“the Act”) inviting him to comment on numerous inconsistencies in the information he had provided, including:
a)whether his child was a son or a daughter;
b)the name of his brother in law;
c)his residential address;
d)the year when the murders allegedly occurred;
e)the number of times he had allegedly been attacked and the years in which the alleged attacks had occurred;
f)whether there had been any police harassment prior to the incident involving Jafarullah;
g)whether it was the police inspector or the RSS who had warned him not to give evidence;
h)where the applicant and his wife escaped to after his house was burnt down; and
i)whether Sidiq was involved in two terrorist organisations.
On 29 September 2006, the applicant responded in writing to the Tribunal’s invitation to comment, primarily saying that the errors were made by a person who assisted him with the documentation.
The Tribunal was satisfied that Sidiq was never accused of the two murders or pursued in relation to any other criminal offence. The Tribunal was satisfied that neither the applicant nor his wife’s family were questioned or harassed by police or attacked by the RSS or any other Hindu group because of Sidiq’s alleged involvement in the murders. Accordingly, the Tribunal was satisfied that the applicant did not lose his job because he was being frequently questioned by the police. The Tribunal was not satisfied the applicant had been attacked by any Hindu groups.
The Tribunal also considered the applicant’s claims arising out of his involvement with the TMMK, saying that:
The Tribunal has considered the applicant’s claims arising out of the incident in 2003 when he went to the police station with the Secretary of the TMMK, Jafarullah. The Tribunal accepts the applicant may have been employed as an office worker in the TMMK office and that after being employed there he was made a member of the TMMK. However the Tribunal is satisfied that the applicant was not an active member of the party or had any political involvement in the TMMK given the activities he claimed he engaged in were all part of his paid duties as an employee.
The Tribunal accepted that the applicant may have been working at the TMMK office the night the police inspector came looking for Basha. However, in relation to the threats about giving evidence about the incident in 2003, the Tribunal said:
… the applicant claimed in the hearing with the first Tribunal that it was the RSS who came and warned him on 23 June 2003 not to give evidence in support of Jafarullah and not the police inspector, as he claimed in his statutory declaration and in the hearing with the current Tribunal. However, in the hearing with the current Tribunal the applicant claimed it was only the police inspector and the TMMK who came and warned him about giving evidence. Given the inconsistency in the applicant’s evidence as to who came and threatened him not to give evidence in support of Jafurullah, the Tribunal does not accept he was warned by either the police or the RSS as he claimed. As the Tribunal does not accept the applicant was warned by the RSS not to give evidence in support of Jafarullah, it does not accept the RSS burnt down the applicant’s house with him and his family in it.
The Tribunal also did not accept that the RSS had burnt down the applicant’s house as he provided inconsistent evidence about the subsequent events. The Tribunal went on to say:
It follows, the Tribunal does not accept the applicant went to Madras because he feared for his life from the RSS, the police and the TMMK. The Tribunal does not accept the applicant’s claim the RSS and TMMK were searching for him and had decided to have him murdered by professional thugs in Madras given the applicant claimed in his statutory declaration that he received his news from his wife. However in the hearing he claimed it was his mother’s relative in Nagore who told him there were some people intending to attack him. The Tribunal does not accept the applicant’s explanation that this was not an inconsistency because his wife had been told by her father, who had in turn been told by his mother’s relatives and that when he gave evidence to the hearing he was referring to the source of the information rather than the person who conveyed it. …
Even if the Tribunal were to accept the applicant was warned against giving evidence by the RSS, the police and the TMMK as he claimed, his house was set fire to by the RSS and he and his family had to flee as a result, the Tribunal finds the essential and significant reason these different parties were interested in the applicant was because of the evidence he could provide in the criminal case against Jafarullah. Although the Tribunal recognises that the fact the harm the applicant fears arises because of evidence he may provide in the criminal case does not preclude a finding that the applicant also feared that harm because of his political opinion, the Tribunal is not satisfied that his political opinion, any imputed political opinion or any other Convention reason would constitute an essential and significant reason in this case. The Tribunal is supported in this finding by the fact the TMMK, the party which the applicant worked for and claimed to be a member of, was also pursuing him because they wanted him to provide specific evidence in support of Jafarullah, whereas the police and the RSS wanted him to not give that same evidence. The Tribunal is satisfied there is nothing in the applicant’s evidence to suggest any interest in him arising from the incident in 2003 involving Jafarullah was related to the fact he was a TMMK member or perceived to be politically involved in the TMMK. Nor is there anything to suggest the applicant was being targeted by the RSS, the police and his own party for any of the other four Convention reasons. The Tribunal notes it has now been over 3 years since the case against Jafarullah was due to go to trial. It does not accept the applicant’s vague evidence that the case was still dragging on and 2 further people had been arrested and he would be sought to give evidence in relation to this. The Tribunal does not accept that given the passage of time the applicant would be of interest to either the RSS, the police or the TMMK if her returned to India. Accordingly, the Tribunal does not accept the applicant faces a real chance of being pursued by either the TMMK, the RSS or the police in relation to the incident which occurred in 2003.
In any event, the Tribunal considered that if the applicant did have a subjective fear of persecution, it would be reasonable for him to relocate within India.
Ground 1
The first ground of review in the amended application filed on 17 April 2007 is:
The Tribunal accepted that I have been employed as an office worker in the TMMK office and after being employed I was made a member of the TMMK (page 26 last paragraph of the RRT decision) but strangely did not assess my claim that I was sacked and persecuted by the Police and members of the opposing policitcal parties for my membership and/or political opinion coupled with my race and thereby breached its duty in assessing my claim for convention reason.
The applicant’s written submissions on this ground were as follows:
[4] In Htun v MIMIA 2001 FCA 1802 Allsop J (with whose reasons Spender J agreed) found the tribunal had failed to consider the claims of the applicant and, by making a decision without having considered all the claims, had failed to complete the exercise of jurisdiction embarked on.
[5] The applicant’s claim the fact he was persecuted for his political view for being a member of the TMMK coupled with his race and religion as a Tamil Muslim. The applicant respectfully submits that it is a jurisdictional error not to make a finding about his race and religion. Applicant WAEE v MIMIA FCAFC 184 {2003} ALD 630.
The first respondent’s written submissions on this ground were as follows:
[23] … contrary to the applicant’s claims in grounds 1 and 5 of his application and paragraphs 4 and 5 of his contentions, the Tribunal did consider each of the claims raised by him. It’s (sic) decision is detailed and thorough. It considered all of the applicant’s evidence. For the large part, it did not accept the evidence and claims of the applicant for the specific reasons provided in its decision. Its finding were open to it on the material before it.
[24] The applicant did not make any specific claims to be persecuted for reason of his race or religion. However, the Tribunal still made findings in relation to these Convention grounds. It found that there was not anything to suggest that the applicant was being targeted by the RSS (Hindus), the police or the TMMK (Muslims) for any of the Convention reasons (CB 134).
The applicant made no oral submissions in relation to this ground. The first respondent repeated his written submissions.
Consideration of ground 1
The applicant did not in fact claim that he was being persecuted because he was a member of the TMMK coupled with his race or religion. The applicant claimed that he was being persecuted for particular reasons relating to Sidiq and Jafarullah. The Tribunal rejected those reasons. There was nothing in the material that suggests that a Muslim Tamil member of the TMMK as such would be persecuted. Accordingly, there was no need for the Tribunal to consider whether a Muslim Tamil member of the TMMK as such might face persecution.
The Tribunal did note that there was nothing “to suggest the applicant was being targeted by the RSS, the police and his own party” for reasons of race, religion, nationality or social group. Moreover, the Tribunal was not satisfied that the applicant's political opinion or imputed political opinion or any other Convention reason was the essential or significant reason for any interest that the RSS, the police or the TMMK might have had in him. In the circumstances, ground 1 is not made out.
Ground 2
The second ground of review is:
The Tribunal failed to understand that the essential and significant reasons for me and my family to flee and the setting of fire to my house was due to my political opinion and for not giving evidence in the criminal case against Jafarullah. Tribunal made a jurisdictional error on this point.
The applicant did not make any written or oral submissions on this ground. The first respondent’s written submissions on this ground, which were reiterated orally, were as follows:
[25] … the Tribunal did not fail to understand the essential and significant reason for the applicant fleeing and his house being set on fire was due to his political opinion. The Tribunal made factual findings that the applicant did not flee to Madras because he feared for his life from the RSS, the police or the TMMK. Further it found that the applicant’s house was not burnt down by the RSS (CB 133). These findings of fact that cannot be reviewed by this Court. Despite having found against the applicant on these factual claims, the Tribunal still turned its mind to whether, if accepted, they would give rise to a claim of persecution for a Convention reason. It appropriately considered what was the essential and significant reason (s91R of the Act) for the persecution and found that it was not because of the applicant’s political or imputed political opinion. Instead, it found that the essential and significant reason would be because he could provide evidence in a criminal case and that this was not a Convention reason.
Consideration of ground 2
The Tribunal, for reasons which it gave, did not accept that the applicant had fled or that his house was burnt down. However, the Tribunal considered that even if the applicant's house had been burned down and that he had fled as a result, the essential and significant reason for those things was not the applicant's political opinion or imputed political opinion. Because the Tribunal did not accept that the applicant had fled or that his house was burnt down, its consideration of the essential and significant reason for which those things might have happened was strictly speaking irrelevant. In any event, it was open to the Tribunal to consider that the essential and significant reason for which those things might have happened was not the applicant's political opinion or imputed political opinion. This ground is not made out.
Ground 3
The third ground of review is:
The Tribunal did not realize that its hearing was a de-novo proceeding and by relying heavily on my previous hearing for inconsistencies has not performed its task stipulated by the statute.
The applicant did not make written or oral submissions on this ground. The first respondent’s written submissions on this ground, which were repeated orally, were as follows:
[26] … the Tribunal did not fail to fulfil its role in conducting a de novo hearing as the applicant claims in his application. It conducted a further hearing and invited the applicant to given evidence and make submissions. It heard oral evidence from him and considered his response to the s424A letter. Contrary to the applicant’s application, the Tribunal was entitled to consider and use the evidence he gave to the first Tribunal and to reach conclusions in relation to any inconsistencies.
Consideration of ground 3
The fact that the Tribunal's second hearing was a de novo proceeding did not preclude it from referring to and relying on the evidence that the applicant had given to the Tribunal as previously constituted. This ground is not made out.
Ground 4
The fourth ground of review is:
The Tribunal has not given me any notice under section 424A of the Act, relating to a report from UK home office it relied that there were no checks on newcomers to any part of India and there was no system of registration of Citizen and I could be relocated is a breach under the mandatory requirement contemplated by the Courts. (Page 18, 2nd paragraph of the RRT decision).
The applicant made no oral submissions on this ground. His written submissions were as follows:
[6] The Tribunal has failed in its mandatory requirement to give notice under section 424A of the Migration Act when it relied on a UK home office report that the applicant could be relocated in other part of India. Any information of this nature must have been brought to the notice of the applicant irrespective of the operation of Section 424A(3) of the Act. By not following this correct procedure the Tribunal has erred jurisdictionally. SAAP v MIMIA HCA 24 (18th May 2005) - Majority Decision. Also VEAL of 2002 v MIMIA HCA 72 (6th December 2005).
The first respondent’s written submissions on this ground were as follows:
[27] Finally, the Tribunal did not breach s424A of the Act by relying on the UK home office report without putting it in writing to the applicant. Section s424A(3)(a) exempts information from the requirements of s424A when it is not specifically about the applicant or another person and is just about a class of person of which the applicant is a member. The UK home office report information is such information. The principle that general country information is exempted by s424A(3)(a) is established by numerous Full Court authorities: see for example, VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178, VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 174, [20]). Therefore, there was no obligation imposed on the Tribunal to put it in writing to the application (sic) and it did not violate s424A.
The first respondent added that this ground did not give rise to a point under under SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 231 ALR 592, because the information was put to the applicant at the hearing.
Consideration of ground 4
It is clear from the Tribunal's reasons that it put to the applicant at the hearing the relevant information. The Tribunal said at page 28 of its reasons:
...the Tribunal notes the country information from the UK Home Office report on India it put to the applicant in the hearing that there were no checks on newcomers to any part of India arriving from another part of India and there was no system of registration of citizens. According to this information, local police forces have neither the resources nor language abilities to perform background checks on people arriving from other parts of India. (emphasis added)
Accordingly, I am satisfied that the applicant was given procedural fairness in relation to the relocation information.
Section 424A of the Act provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that 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 understands 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--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.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant for review gave for the purpose of the application; or
(ba)that the applicant gave 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; or
(c)that is non‑disclosable information.
It is clear on the authorities that the information in the UK Home Office report falls within the exception in s.424A(3)(b) of the Act. Accordingly, there was no requirement for the Tribunal to provide that information to the applicant in writing. This ground is not made out.
Ground 5
The fifth ground of review is:
The Tribunal has not assessed my claim against my race/religion as a Tamil/Muslim even though it has information that I belong to a minority group in a predominantly Hindu country.
The applicant made no oral or written submissions specifically in relation to this ground. The first respondent relied on his submissions in relation to ground 1.
Consideration of ground 5
The fact that a person belongs to a minority group does not necessarily suggest that they might be persecuted. There was nothing in the materials before the Tribunal which suggested that a Tamil Muslim in India might be persecuted simply by reason of the person being a Tamil Muslim. Accordingly, it was not necessary for the Tribunal to consider whether the applicant might be persecuted simply because he was a Tamil Muslim in a predominantly Hindu country. Otherwise, I refer to and repeat the matters stated in relation to ground 1. This ground is not made out.
Conclusion
As none of the grounds of review has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 21 August 2007
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