S273 of 2003 v Minister for Immigration
[2005] FMCA 983
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S273 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 983 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – whether the RRT erred in relying upon s.91R of the Migration Act 1958 (Cth) in respect of a visa application made before the commencement of that section considered – no reviewable error found – observations on the Michigan Guidelines on Well-Founded Fear. |
| Migration Act 1958 (Cth), s.91R Migration Legislation Amendment Act No 6 2001 (Cth) |
Hathaway, J C, “Third Colloquium on Challenges in International Refugee Law: The Michigan Guidelines on Well-Founded Fear”, Michigan Journal of International Law, Vol 26, No 2, Winter 2005
Hathaway J C & Hicks, W S, “Is There a Subjective Element in the Refugee Convention’s Requirement of ‘Well-Founded Fear’?”, Michigan Journal of International Law, Vol 26, No 2, Winter 2005
| Re Minister for Immigration; ex parte Miah [2001] HCA 22 |
| Applicant: | APPLICANT S273 OF 2003 |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG776 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 14 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is to be joined to the proceedings as the second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG776 of 2005
| APPLICANT S273 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 7 January 2005. The decision was communicated to the applicant by letter dated 7 January 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political persecution. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr Beech-Jones. I adopt as background for the purposes of this judgment paragraphs 1-5 of those written submissions:
The applicant is a citizen of India who was born on 23 June 1962 (court book, page 2). He arrived in Australia on 5 August 1991 (court book, page 97.1). On 3 March 1997 he lodged an application for a protection visa (court book, pages 1–27). On 1 September 1997 a delegate of the respondent refused his application (court book, pages 31–36). He sought review by the RRT (court book, pages 38–41). On 2 March 1999 the RRT, differently constituted, affirmed the delegate’s decision (court book, pages 53-60). On 5 October 2004, the Federal Court made orders, by consent, for the issue of a writ of certiorari quashing the RRT’s decision and the issue of a writ of mandamus requiring that it be redetermined (court book, page 61). On 7 January 2005 the RRT again affirmed the delegate’s decision (court book, pages 96–132).
The applicant claimed that he had a well founded fear of persecution for a Convention reason by reason of his political opinion, namely his active support for the RSS a Hindu fundamentalist party, and possibly his Hindu religion. His claims were set out in his answers to various question in his protection visa application (court book, pages 19–23) and various documents lodged on his behalf to the RRT as originally constituted and then re-constituted (see court book, pages 46 and 73‑93). These documents included a detailed statutory declaration dated 2 December 2004 (court book, pages 75–77). His claims were expanded upon during an oral hearing before the RRT on 6 December 2004 (court book, page 82) the terms of which are summarised in the RRT’s decision (court book, pages 104 – 109).
Based upon the statement that was submitted in December 2004 it seems that the following represents a summary of the applicant’s claims:
i)He joined the RSS in 1982 when he was 20 years old and together with his father became an active member (court book, page 75.2);
ii)In 1984 while he was on his way home after attending a party meeting he was attacked by members of the Muslim League (court book, page 75.4);
iii)After this attack he started receiving threatening letters but kept working with the RSS (court book, page 75.5);
iv)In early 1985 he moved to Ghaziabad but threatening letters were sent to his home address in Delhi and he received phone calls in Ghaziabad (court book, page 75.6);
v)In August 1985 he finished his studies and lived between Ghaziabad, Delhi and Rishikesh (court book, page 75.6);
vi)He settled in Rishikesh in February 1988 where his friend Ravi Mohale lived (court book, page 75.7);
vii)He commenced a business with Ravi “breeding Angora rabbits” (court book, page 75.8);
viii)In November 1986 he was attacked by 10-12 people in Delhi on his way home from hospital after seeing his ailing father (court book, page 75.10);
ix)He then returned on leaving Rishikesh and became aware that people were attempting to locate him (court book, page 76.3);
x)He concluded that no matter where he lived in India people would find him and so he obtained a student visa for Australia in early 1991. His father fell ill so he obtained an extension and left in August 1991 (court book, page 76.6);
xi)His father died in 1998 and his brother advised him in 2002 that he was still receiving threatening phone calls (court book, page 76.10).
The RRT decision
In its decision the RRT set out the constituent elements of the definition of a refugee (court book, pages 96 – 99), summarised the claims and evidence put forward (court book, pages 100–114), including the “independent country information” (court book, pages 112–114), and then set out the findings and reasons for its decision (court book, pages 114–131). In summary the RRT found as follows:
i)It accepted that the applicant was an Indian national and a Hindu (court book, page 114.4);
ii)It was satisfied that the applicant does not “have anything other than a very superficial understanding of the RSS and its activities, his real involvement in the RSS ended some 18 years ago” (court book, page 117.4);
iii)It did not accept that his claim that he and his father has worked for the RSS had given the applicant a profile and made him a "clear target for the Muslim League" that would result in there being a real chance that the applicant will be subjected to serious harm and may lead to persecution “on this basis” (court book, page 118.6);
iv)It was not satisfied there was a real chance the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returned to India by reason of his association with the RSS (court book, page 118.8);
v)It was satisfied the applicant did not intend to become actively involved again in the RSS if he returned to India (court book, page 118.9);
vi)It accepted the applicant was attacked as he claimed in 1984 and again in 1986 (court book, page 119.5);
vii)It was not satisfied that those persons who were apparently looking for him in Rishikesh had any intention to cause him serious harm for a Convention reason (court book, page 120.5);
viii)Merely because the authorities have not been able to arrest his attackers from the two incidents in 1994 to 1996 did not indicate a breakdown in state protection (court book, page 121.5);
ix)It accepted that his family had received threatening telephone calls in Delhi since he departed India (court book, page 122.8) and that they had been approached about his whereabouts (court book, page 124.4), but found that if for any reason he did not want to return to the local area of New Delhi where he lived previously “it would be reasonable for him to move elsewhere in New Delhi, or indeed elsewhere in India, in safety” (court book, page 125.2); and
x)Considering the delay in the lodgement of the protection visa application found it did not accept that the “reason he came to Australia was in order to protect his life or that he has a well founded fear of serious harm amounting to persecution for a Conventional related reason” (court book, page 126.2); (see also court book, page 127.5; court book, page 128.3).
Accordingly the RRT affirmed the delegate’s decision (court book, page 131.6).
As Mr Beech-Jones notes in his written submissions, the application for judicial review filed in the Federal Court on 14 January 2005 only raises one legal issue which is an allegation of bias. The proceeding was transferred from the Federal Court to this Court by order of Branson J on 23 March 2005. The applicant was at the time in immigration detention and had difficulty in complying with an order by Registrar McIllhatton for an amended application with particulars. In legal argument this morning, the applicant did not take up an opportunity to elaborate upon the allegation of bias. Instead, he indicated that he wished to raise other matters. Having regard to the difficulties the applicant faced in preparing for the hearing while in immigration detention, I gave him that opportunity. The applicant first submits that the RRT erred in relying upon s.91R of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant notes that section was inserted into the Migration Act after he made his protection visa application. I accept from what appears on page 98 of the court book that the RRT did rely upon s.91R. However, there was no error in that reliance by the RRT.
I accept Mr Beech-Jones' submission that the transitional provisions contained in the Migration Legislation Amendment Act No 6 2001 (Cth) in Schedule 1, part 2, items 7, 8 and 9 establish that s.91R applies to an application for a protection visa made before the commencement of the amending legislation where, as here, a decision to refuse to grant the visa had been made before the commencement of the provision; an application to review that decision was made to the RRT (whether before or after the commencement of the amendments does not matter); and the decision of the RRT on the review application was made after the date of commencement of the amendments. That was the position here. Accordingly, there was no jurisdictional error in the RRT relying upon s.91R.
The second argument raised by the applicant is that the RRT decision suffers from internal inconsistencies. The applicant draws attention to the findings that he had been a member of the RSS and that his family had received threatening phone calls until shortly before the RRT hearing. The applicant regards those findings as inconsistent with the finding on page 121 of the court book that he had ceased his RSS involvement about 18 years before the RRT decision.
The applicant also regards the decision of the RRT as illogical on the question of whether his fears of persecution were well-founded having regard to the continuing threats received by his family in India. There are a number of answers to these arguments.
First, as noted by Mr Beech-Jones, although the presiding member accepted at page 112 of the court book that the applicant's family had received threatening phone calls until fairly recently before the RRT hearing it is apparent from what the presiding member says on page 123 of the court book that he could find no Convention nexus with those threatening calls. Simply put, the presiding member was not able to determine who made those calls or why they were made. There was no necessary or logical connection to the applicant's RSS involvement many years before.
Secondly, as I pointed out to the applicant in argument, it is fairly well‑established that the mere threat of harm does not generally establish serious harm for the purposes of s.91R. Thirdly, as was pointed out by Mr Beech-Jones in his oral submissions, even if there was a risk confronting the applicant in India that he needed to avoid, the presiding member had found that he could relocate. That finding appears at the top of page 125 of the court book.
I agree with Mr Beech-Jones that there is no inconsistency or illogicality in the reasoning of the presiding member. Even if there had been, illogicality is not in itself a jurisdictional error although it may point to one.
The next issue raised by the applicant concerns his submission that he was unwilling to avail himself of state protection in India because of the corruption of the Indian police. The presiding member deals with that issue on page 129 of the court book. The applicant draws attention in particular to the presiding member's statement at about point 7 on that page that his claims and those of his adviser in the adviser's submission of 21 December 2004 were not supported by any evidence. This appears to be an error. The adviser's submission commences on page 87 of the court book. The relevant claim appears towards the top of page 90. The applicant's adviser clearly refers to country information in support of the contention of corruption in India's police and judiciary. The presiding member also appears to have been unclear as to what point the applicant was attempting to make in raising the issue of corruption. In my view, it should have been apparent that the applicant was seeking to satisfy the RRT as to the reason he was unwilling to avail himself of Indian state protection. Nevertheless, the error or errors made by the presiding member are immaterial. It is clear from a fair reading of the rather lengthy and discursive reasons of the presiding member that he was in no doubt that the applicant did not have a well-founded fear of persecution in India. Having found that the applicant would not suffer persecution should he return to India, his willingness or unwillingness to avail himself of Indian state protection was immaterial.
Another issue raised by the applicant in his oral submissions concerned the findings by the presiding member on the genuineness of his fear of persecution. The applicant referred to the findings and observations by the presiding member on page 126 of the court book and in particular the presiding member's view that the delay by the applicant in departing India for Australia once he had received a student visa indicated a lack of subjective fear. The applicant says that his delay is clearly explained by the serious illness of his father at the time which he pointed out to the presiding member at the hearing. It is not clear to me why the presiding member felt the need to address whether the applicant did or did not have a subjective fear of persecution. It is in my view often an unnecessary and arid inquiry as well as being a difficult one. It is by no means easy to attempt to look into the mind of an applicant.
There is also a more general and fundamental question of whether the assessment of whether an applicant has a well-founded fear of persecution involves a consideration of a subjective fear. This issue was addressed recently by Professor Hathaway and other leading international academics who formulated the Michigan Guidelines on well-founded fear. The guidelines appear in volume 26 number 2 of the Michigan Journal of International Law. Professor Hathaway seeks to explain the guidelines in an article he co-authored with William S. Hicks entitled "Is there a subjective element in the Refugee Convention’s requirement of ‘well-founded fear’?" The article appears in the same number of the Michigan Journal at page 505. Professor Hathaway and those who assisted him in formulating the Michigan Guidelines mount a powerful case for the proposition that the traditional bi-partite approach to the consideration of well-founded fear is incorrect. Nevertheless, as Professor Hathaway himself points out, the traditional bi-partite approach finds support in the UNHCR Handbook and in leading court judgments in a number of countries, including the decision of the High Court in Re Minister for Immigration; ex parte Miah [2001] HCA 22. I am of course bound by that decision. Nevertheless, the Michigan Guidelines represent an important academic contribution to the interpretation of the Refugee Convention. The RRT and this Court would benefit from the guidance of the superior courts in Australia on those guidelines.
On the specific question raised by the applicant, the presiding member was in my view entitled to find on the information before him that the applicant had failed to establish a subjective fear at the time he made his application for a protection visa. The issue is probably academic because the presiding member had clearly found that the applicant's fear, whether genuine or not, was not well-founded. That was the essential question that the RRT had to answer and which it did answer.
Two other matters raised by the applicant have no substance. The applicant sought to identify some error in the presiding member's findings that the applicant had suffered serious harm in 1984 and 1986 in relation to the ultimate finding that he did not have a well-founded fear of persecution. The presiding member was reasonably and properly influenced by the fact that that harm was suffered many years before the applicant came to Australia and sought protection. The threats asserted by the applicant more recently could not be clearly linked to that harm and did not in themselves amount to serious harm.
The applicant also sought to protest the relocation finding made by the RRT in his submissions in reply. This was, however, a contest with the merits of that finding. The applicant asserts that he had attempted unsuccessfully to relocate in India but he himself concedes that that argument was rejected by the RRT (see page 124 of the court book).
I see no error, let alone any jurisdictional error in that finding.
The applicant has failed to persuade me that there is any jurisdictional error in the decision of the RRT. On my own reading of the decision and reasons of the RRT, I can see no jurisdictional error. It follows that the decision of the RRT is a privative clause decision and the application must be dismissed. I do so.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Beech-Jones seeks an order fixed in the sum of $4,800 on a party/party basis. I accept that those costs have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis. The applicant referred to his impecuniosity but as has been said many times that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,800.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 July 2005
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