MZKAP v Minister for Immigration
[2003] FMCA 270
•2 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZKAP & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 270 |
| MIGRATION – Application to set aside order of Refugee Review Tribunal for protection visas – application dismissed – no error. Migration Act 1958 (Cth), s.474 S157/2002 v Commonwealth of Australia (2003) HCA 2 |
| Applicant: | MZKAP & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1176 of 2002 |
| Delivered on: | 2 July 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 26 June 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Solicitors for the Applicants: | In person |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the Application filed 19 November 2002 be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the amount of $4,932.
IT IS CERTIFED THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for an advocate to be briefed in this matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1176 of 2003
| MZKAP & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This application was filed in the Federal Magistrates Court on
19 November 2002. The application seeks an order setting aside the order of the Refugee Review Tribunal ("the Tribunal") made on
22 October 2002 which affirmed a delegate of the minister's decision to refuse the applicant's application for protection visas on 12 June 2001.
The application is not expressly made under s.39B of the Judiciary Act 1903 (Cth). It appears to challenge the merits of the decision and also raises some new claims which were not raised before the Tribunal and have no bearing on the present application. Notwithstanding, the application was directed to the merits of the case, as the applicant was unrepresented I considered what grounds might be available to him and counsel for the respondent also made submissions on that basis.
Background
The applicants are Indian husband and wife born on 16 December 1973 and 19 May 1978 respectively. They arrived in Australia on 9 May 2001 on visitor visas. On 22 May 2001 they lodged an application for protection visas based on claims made by the first applicant, that is, the husband. It appears that only the husband gave evidence at the hearing before the Tribunal and beforehand in written material. Similarly, at the hearing before me the husband made submissions on behalf of himself and his wife.
The applicants are of the Hindu faith and from Andhra Pradesh. The applicant husband completed a tertiary education in India and worked there in sales. He also assisted his father form time to time in some of the family's business operations.
He claimed that his father was a large landholder with other business interests in Hyderabad, he claimed that his brother worked with congress and that his family was well known.
He claimed that his father was often harassed for money by Naxalites who also prevented him from growing crops on his land. He claimed that over time the demands for money became extortionate and that the harassment became worse when his father refused to meet the financial demands made of him.
He claimed that in the early 1990s he and his father were kidnapped and tortured by Naxalites who then dumped them in a nearby town. He claimed that he required hospitalisation for a few weeks and that he was treated for dehydration and given IV fluids.
He claimed that his father reported this incident to a police officer known to him and a number of Naxalites were later arrested. He claims that the Naxalites were released on bail after a bribe was paid to the magistrate and that he was also threatened by some police officers with imprisonment if he gave testimony in Court.
He claimed that after the Court case other Naxalites threatened him and his father with dire consequences, even death, if they ever acted against any Naxalites in the future. He claimed that official corruption was so rife that Naxalites are often let off charges to avoid arrest. He claimed that although one of his relatives was prominent in congress even he was unable to influence the authorities to act appropriately.
He asserts that later on an occasion in his father's office during an argument with Naxalites over money he was cut with a knife and required hospitalisation to treat his wound.
The applicant claimed that about a year after his marriage in the mid 1990s he moved to his parents-in-law's home about 100 kilometres from his own home town and remained there for about a year. He claimed that there were still threats against his life after he moved from his home area and that as a consequence he hardly ever went outside. He later claimed that he moved to another location in Andhra Pradesh in the late 1990s and he remained there until the time of his departure for Australia.
The applicant claimed that he would not be safe anywhere in India and that even some high profile people had been victimised by Naxalites without the perpetrators of the crime ever being brought to justice. He claimed that low profile people like him, were at greater risk of being targeted by Naxalites. The police officers often accept bribes from Naxalites rather than properly pursue them.
In his statement lodged with his initial application the first applicant claimed that:
a)his father was a successful businessman in Hyderabad, his brother worked with congress (I), the family had 50 acres of land at Karimnagar and the family is popular and well known;
b)the Naxalites demanded protection money from the first applicant's father, he asked a police officer he knew for help and the police set a trap for the Naxalites. Three of them were arrested and one was hospitalised;
c)on the same day, the first applicant and his father were taken away by some people who told the first applicant and his father to withdraw the case; they asked the police to release the criminals; the police then bashed the first applicant and his father and they were left in the bush and had to wait seven or eight hours for an ambulance and were hospitalised for about 25 days;
d)in November 2000 some Naxalites demanded that the family empty their block of land so that the Naxalites could use it to grow drugs. The first applicant argued and fought with the Naxalites and was wounded with a knife and lost consciousness and was hospitalised for at least one month;
e)the family paid the police to arrest the gangster and two Naxalites were arrested and held in a police station; other Naxalites attacked the police station to try to release the arrested ones; they also attacked the family's office and threatened to take the second applicant and her child who were then sent to another district;
f)the offenders were released on bail without hearing the first applicant's evidence; the Court was shown a medical certificate and the magistrate was paid a huge amount of money; the Naxalites told the first applicant to start counting the days as he would not be alive for the next hearing;
g)the same evening, the Naxalites attacked the first applicant's house but fled before the police arrived; they also threatened the police officer who supported the first applicant's case; the officer withdrew his support. The police said the Naxalites had direct contact with the superintendent and he ordered the police not to lodge any complaint against the Naxalites;
h)the Naxalites wanted to kill the first applicant; they tried to do so unsuccessfully; the first applicant went into hiding of the house of his parents-in-law; his father went to Secanderabad. The Naxalites still found the first applicant even though he stayed indoors most of the time.
i)the first applicant moved to Secanderabad but was attacked a few times there. His father has now moved to another state. The whole family's in hiding and the applicants have left behind in India their 3 year old daughter.
The Tribunal's decision
The Tribunal accepted that Naxalites are active in parts of the applicant's home state and neighbouring areas. The Tribunal however, noted and gave weight to material cited in the Department of Foreign Affairs and Trade Country Information Report of 6 July 1998 to the effect that police are active in deterring illegal activities by Naxalites. The Tribunal also noted that a later report as of 6 March 2000 noted that a battalion of the Indian Reserve Battalions had been sent to each of the five states where Naxalites are active in order to quell their activities. In the circumstances, the Tribunal considered that the applicant and other family members would have been able to call upon the state for protection if, in fact, they had been targeted by Naxalites. The Tribunal accepted that the applicant's family's a large landholder and found that if they were harassed by Naxalites and impeded in their farming activities or harried to supply money to Naxalites they would have been able to call upon the protection of the state.
The Tribunal did not accept the applicant's claims that he and his father were kidnapped and mistreated by Naxalites in the early 1990s. The Tribunal, in reaching this conclusion, noted the fact that the applicant's evidence was vague concerning his treatment when allegedly hospitalised. It noted that in his statement he gave a different sequence of events regarding his kidnap and the arrest of the Naxalites compared with his evidence at the hearing. The Tribunal noted that over time he had given somewhat different periods for his hospitalisation and said at the hearing that it was ultimately released in a town rather than the bush, where on his initial statement, he had to wait some time for an ambulance. Consequently, the Tribunal did not accept that the applicant or his father were ever kidnapped by Naxalites. It found that on the basis of Country Information that in any event, they would have been able to call upon the protection of the state if they were ever targeted by Naxalites. Thus, the Tribunal did not accept the applicant was ever required to give evidence in Court in relation to any alleged kidnapping of him or associated demands for a ransom, or that the was subsequently threatened by Naxalites for his role in the alleged Court cases or related matters.
In relation to the applicant's claim that he was on another occasion knifed during an argument with Naxalites at his father's office. The Tribunal noted his evidence that he needed to go to hospital to have his wound bandaged. The Tribunal noted that in his initial statement he claimed he was hospitalised for some weeks with the same injury. The Tribunal was left with considerable doubt about the veracity of the applicant's claim but considered that in any event that Country Information indicated that the applicant would have been able to call upon protection of the state if he were personally attacked or if his property were attacked, by Naxalites.
The Tribunal expressly rejected the first applicant's claim that the authorities, including the police and the courts, were powerless to protect citizens or were so corrupt as to let Naxalite terrorists avoid due process.
The Tribunal noted that in the initial application for a protection visa the applicant gave the same address from birth until leaving for Australia and disclosed only one job. The Tribunal accepted that the applicant may have taken up temporary residence in various locations within the ambit of his employment (he said his job involved extensive travel). The Tribunal did not accept, that he left his home for any significant period of time or that he ever left because of threats from Naxalites.
In any event, the Tribunal considered that the first applicant could reasonably be expected to relocate within India to an area where the Naxalites are not active. The Tribunal noted that the first applicant has a tertiary education, speaks English, is relatively young and has experience in an occupation, marketing, that could be performed in a variety of locations such as New Delhi or some other place away from the areas where applicants are active. The Tribunal found that the applicant's capacity for relocation, therefore, was, of itself, fatal to his case.
The relevant law
The present application is affected by the provision contained in section 474 of the Migration Act 1958 (Cth) ("the Act"). The High Court held in plaintiff S157/2002 v. Commonwealth of Australia (2004) HCA2; (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte applicants S134/2002 (2003) HCA1; (2003) 195 ALR 1, in broad terms that the clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith; S157/2002 at (76) and applicants S134/2002 at (15).
The decision in S157/2002 v Minister for Immigration Multicultural and Ind Indigenous Affairs overrules NAAV v. Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, it does so necessarily in relation to the Tribunal's obligation to record procedural fairness and in relation to the way in which NAAV v Minister for Immigration Multicultural and Indigenous Affairs found that s.474 had expanded the jurisdiction of the Tribunal.
An administrative Tribunal exceeds its part and thus commits a jurisdictional error of if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that it affected the exercise or purported exercise of the Tribunal's power (see Craig v. South Australia (1995) 184 CLR 163). Per McHugh, Gummow and Hayne AJ at 179; and Dranichnikov v. Minister for Immigration and Multicultural Affairs (2003) HCA 26.
The applicant's case
The applicant contended that there were four matters which caused the Tribunal to fall into an error which enliven the jurisdiction of the Court to provide him relief;
i)the tribunal ignored the fact that the parties had a 3 year old daughter in India who was with the second applicant's parents. He contended there was nothing in the judgment to suggest that they had given this factor any consideration.
ii)the other matters raised by the applicant concerned the tribunal's findings as to credibility. He contended that the Tribunal were correct when they pointed out that he had made different statements to the Tribunal and in his initial application had contended that they were not inconsistent. He further contended that it was clear from his evidence that the police had not protected him and that this should have been accepted by the tribunal. Finally he said that no weight should be placed on the fact that he said that he lives in his home from Perth to Australia as his profession required him to travel and there was no inconsistency upon which weight should have been placed by the Tribunal in finding that his evidence of having lived elsewhere for a period should be accepted.
The respondent's case
The respondent contended that there was no indication in this case of anything resembling bad faith or bias on the Tribunal's part; SBBS v. Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361. It was contended in particular that there was nothing to suggest the Tribunal failed to comply with the statutory or common law requirements concerning procedural fairness.
The Minister contended that the Tribunal had a number of reasons for dismissing the application that were common that:
a)the credibility of the applicant;
b)the state protection available; and
c)the fact that the applicant could reasonably relocate to another area in India.
It was submitted that each was sufficient to justify the decision of the Tribunal. In particular the Tribunal said that the ability to relocate was fatal. It was contended for the minister that the Tribunal had rejected the applicant's claims that state protection was not available and looked appropriately at Country Information. From that information it was entitled to conclude that it could not be said that there was no state protection. Whilst this might not guarantee the applicant's freedom from someone's illegal activity the test was whether the state was condoning the terror and the Tribunal was entitled to conclude that it was not.
It was contended by the minister that the Tribunal was aware that the applicant had a 3-year-old daughter in India but was not obliged to take this matter into account nor mention it in the judgment as it was not a relevant consideration to the decision. The minister further contended that it was a matter for the Tribunal as to the credibility of the applicant as long as those findings were made reasonably and in this case, the findings were open to them.
Finally it was submitted that the ability of the applicant to move to a different area in India having regard to his age, his capacity to speak English and his occupation and that this was fatal to his case.
Conclusions
It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu) (1999) 197 CLR 611. The Tribunal is not required to adopt an uncritical acceptance of the allegations put before it by the applicant.
The Tribunal considered the arguments put by the applicant and considered the differences in the applicant's evidence as presented to the minister's delegate and to the Tribunal. In considering these inconsistencies it came to the conclusion that it should not place great weight on the credibility of the applicant. It is not for this Court to review the merits of the Tribunal's decision nor to substitute for the Tribunal's views of the evidence before this Court's views.
Whilst the judgment did not refer to the parties' 3 year old daughter who had remained in India, it is well established that a decision maker does not err in failing to take into account a relevant consideration unless it is a consideration he was bound to take into account; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24; Paul v. Minister of Immigration and Multicultural and Indigenous Affairs (2001) FCA 1196.
Ignoring relevant material, unless caused by an error of law, is of no legal significance and moreover it is always necessary for an applicant to show that, absent the alleged error, the decision may have been different; Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 384. None of these elements were present in this case and in any event, the fact that the parties' daughter was still in India was not a relevant consideration to the essential consideration of the Tribunal, namely whether the applicants have been persecuted for convention reasons.
Furthermore, the Tribunal's entitled to the come to the view it did as to the protection available on the basis of Country Information.
But in any event, I accept the submissions of the respondent that the Tribunal was correct in identifying the fact that even if the applicant did feel a subjective fear in connection with the Naxalites he was reasonably able to relocate within India to an area where the Naxalites were absent Randhawa v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
For this reason in my view the Tribunal was not in error in dismissing the applicant's case and this application must be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 2 July 2003
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