SZABH v Minister for Immigration

[2003] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABH v MINISTER FOR IMMIGRATION [2003] FMCA 323

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – whether any reviewable error disclosed by decision – failure to consider relevant evidence is a failure to exercise jurisdiction.

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Minister for Immigration & Ethnic Affairs v Guo (1996) 191 CLR 559

Applicant: SZABH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1116 of 2002

Delivered on: 30 July 2003

Delivered at: Sydney

Hearing date: 4 June 2003

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Patel

Counsel for the Respondent: Mr Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is remitted to the Refugee Review Tribunal for rehearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1116 of 2002

SZABH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, who is identified only by the letters SZABH, seeks a review of a decision by the Refugee Review Tribunal (hereafter referred to as “the RRT” or “the Tribunal”) refusing to grant a Protection visa to him. The applicant is identified in this way rather than by the use of his name by reason of s.91X of the Migration Act 1958, which provides that the Court must not publish the name of an applicant for a protection visa.

2. Counsel for the applicant provided a comprehensive list of authorities and counsel for the respondent provided a written submission. Both counsel addressed the Court.

Background

1. The applicant is a citizen of India who was born on 10^th August 1968. He arrived in Australia on 3^rd April 2001 and applied for a Protection (Class XA) visa on 10^th May 2001. In his application, he claimed that he is a member of the Catholic faith but was born in a region of India occupied predominantly by followers of the Hindu religion. The applicant was working in Saudi Arabia but returned to India to get married. He married a Hindu woman on 24^th June 1999. The marriage was an unhappy one from the start and the applicant returned to the Middle East to continue his employment, leaving his new wife in India. When he returned to India for a holiday, he says that he was kidnapped and threatened by members of a Hindu religious cult called Sivasene. After being beaten by members of this cult, the applicant was released, but says that he received no sympathy or assistance either from his wife or the local police. Fearing for his life, he returned to the Middle East and commenced divorce proceedings. As his visa was due to expire, the applicant chose to travel to Australia rather than return to India. He has relatives in Australia.

2. On 12^th July 2001 a Case Manager from the respondent’s department wrote to the applicant, referring him to certain decided cases and inviting his comments on certain specific matters about his application. The letter stated that Christians constitute the second largest minority in India and are well-integrated into Indian society. The letter put the following matters to the applicant:

   “You have provided no detail as to when, how, where, why or by whom you were persecuted, nor have you clearly indicated who you fear on return. There is no evidence that the authorities were implicated in the harm you claim to have experienced, nor is there any evidence to indicate you would be denied protection by the authorities from this type of private/sectional harm.

   You are a university graduate who has demonstrated that you have the resources to travel overseas. Your passport indicates you have travelled out of India in November 1997 and returned in 2000. Given the private/sectional nature of the harm feared and given your ability to travel internationally on more than one occasion, I consider that relocation within India may be (a) reasonable option for you to take.”

3. There is no evidence of any reply by the applicant to the letter of 12^th July 2001. On 25^th August 2001 a delegate of the Minister wrote to the applicant, advising him that his application for the grant of a Protection Visa was refused.

4. On 11^th September 2001 the applicant sought a review of this decision by the Refugee Review Tribunal. On 6^th August 2002, the RRT wrote to the applicant, advising him that a member of the Tribunal had looked at the information relating to his application but was unable to make a decision in his favour on that information alone. As a result, the RRT invited the applicant to appear at a hearing on 4^th September 2002 to give oral evidence and present arguments in support of his claims. The applicant appeared at the hearing, accompanied by his immigration consultant, Mr Selliah. The applicant indicated that he did not require the services of an interpreter. On 23^rd October 2002, the RRT wrote to the applicant to advise him of the decision that he was not entitled to a Protection visa. On 8^th November 2002, the applicant filed an application for review of the RRT’s decision. The application was heard on 4^th June 2003.

Jurisdiction

1. The Federal Magistrates Court has jurisdiction in relation to a matter arising under the Migration Act by virtue of s.483A of that Act. This Court and the Federal Court have exclusive jurisdiction in relation to privative clause decisions, other than the jurisdiction of the High Court of Australia (s.484).

2. Privative clause decisions are defined in s.474 of the Migration Act. The decision by the RRT is a “privative clause decision” (see s.474(2)). Where a person makes an application to review a privative clause decision, the Federal Magistrates Court only has jurisdiction in respect of the proceeding pursuant to sections 39B or 44 of the Judiciary Act 1903. Section 476 of the Migration Act provides that the Federal Magistrates Court does not have any jurisdiction in relation to a primary decision. A primary decision is defined by s.476(6) as:

   “a privative clause decision:

   (a) that is reviewable, or has been reviewed, under Part 5 or Part 7 or section 500; or

   (b) that would have been so reviewable if an application for such review had been made within a specified period.”

3. Section 475A of the Act provides that s.476 does not affect the jurisdiction of this Court under section 483A of the Act or section 44 of the Judiciary Act in relation to a privative clause decision or “any other decision in respect of which the court’s jurisdiction is not excluded by section 476.” The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to section 39B of the Judiciary Act.

The grounds of the application

1. In his Amended Application for an Order of Review filed on

   
   

   16^th December 2002, the applicant claimed that the Tribunal fell into jurisdictional error in that it failed to take into account relevant considerations and failed to accord the applicant natural justice. The particular ground was said to be:

   “Having made a finding that the Applicant has a well founded fear of persecution, the Tribunal failed to take into account that in relocating the Applicant would either face persecution as a Christian or would have practical difficulties of resettlement.”

2. When the matter came on for hearing on 4^th June 2003, the applicant’s counsel, Mr Patel, told the Court that the grounds to be relied on were:

   a)that the Tribunal member exceeded his jurisdiction in that there was a constructive failure on the part of the Tribunal to apply the proper law; and

   b)the Tribunal member failed to give proper and adequate reasons, which he was required by the Act to do and, therefore, the Tribunal had failed to exercise its jurisdiction.

3. Mr Patel told the Court that the application was not proceeding on the question of failure to provide natural justice.

4. The submission was that the Tribunal failed to apply the law correctly by applying the incorrect test. Counsel referred to the decision in Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014 as authority for the proposition that the test of whether or not an applicant has a well-founded fear of persecution is a two-stage test. The applicant’s fear of persecution must be investigated before the Tribunal considers whether it is reasonable for the applicant to relocate within the applicant’s own country to escape that persecution. It is an error, he submitted, to consider the reasonableness of relocation as one of the factors in coming to the conclusion that the applicant’s fear is well-founded.

5. The other submission was that the Tribunal had failed to comply with the requirements of s.430 of the Migration Act in not giving sufficient reasons for the Tribunal’s decision. There was a failure to disclose the Tribunal’s reasons that would demonstrate the steps taken to reach the conclusions to which the Tribunal came. The Tribunal, it is submitted, did not make any findings about which area of India to which the applicant could safely relocate.

6. The applicant’s case is, therefore, that the RRT fell into jurisdictional error by failing to apply the proper test in order to ascertain whether the applicant had a well-founded fear of persecution and by failing to give reasons for that decision.

The respondent’s submissions

1. In his written submission, counsel for the respondent, Mr Kennett, stated that the Tribunal had concluded that the applicant could safely relocate within India and that it would not be unreasonable for the applicant to do so, given his qualifications and experience. He submitted that the Tribunal had correctly considered whether the applicant would face a real chance of persecution for a Convention reason in another part of India and the degree of difficulty he would face in establishing himself elsewhere in India (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).

2. During the hearing, Mr Kennett drew a distinction between the two grounds relied upon by the applicant. In his submission, if the Tribunal applied the correct test, the applicant cannot succeed in showing a failure by the Tribunal if all he does is establish a breach of s. 430. He referred the Court to the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.

Conclusions

1. In reading the Decision and Reasons for Decision dated 27^th September 2002 and handed down on 23^rd October 2002, I am satisfied that the reasons for decision were aptly described by counsel for the respondent as “sketchy”. At times, they are barely more than a collection of bald assertions. On page 7 of the Decision, under the heading “Findings and Reasons” the Tribunal makes these findings:

   ·“I am satisfied that the Applicant did marry into a strict Hindu family and when he failed to convert to Hinduism he was harassed, mistreated and threatened.”

   ·“I am satisfied that it would not be unreasonable for the Applicant to relocate within India.”

   ·“I am satisfied that the Applicant could relocate safely. That is, I am not satisfied that there is any real chance that the Applicant’s wife’s family will have the will and the capacity to trace the Applicant and do him harm.”

   ·“I note that there is some discrimination against Christians in India and some outbreaks of communal violence and violence against Christians in India. I also note the large number of Christians in India, the relatively small numbers involved in such incidents, and that the Applicant does not claim to have been persecuted by Hindus in the past.”

   ·“I am not satisfied that any fear of persecution by Hindus that the Applicant may have is well founded.”

2. The evidence in support of those findings appears on pages 5 and 6 of the decision, where the Tribunal summarises the applicant’s arguments, and then adds comments. The applicant was asked if he could safely relocate within India and said that he could not, because there is a national network of Hindus and his wife’s family would always know where he was, because they would discover this through family and friends.

3. The law is clear that an applicant for refugee status must demonstrate that he or she is unable to avoid persecution by relocating within his or her own country. In Randhawa (supra) Black CJ stated this proposition:

   “Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.”

4. It is also clear that, whilst it is not normally appropriate to use a term like ‘onus of proof’ in connection with administrative decision-making, the law requires that the Tribunal must be ‘satisfied’ that an applicant for a Protection visa is a refugee.  In Minister for Immigration and Ethnic Affairs v Guo (1996) 191 CLR 559, Kirby J said this:

   “The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the Minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”(at 596).

5. What concerns me in this case, however, is that the Tribunal appears not to have considered all of the matters put by the applicant. The Tribunal appears to be satisfied that the applicant would face persecution in his home region in India but that he has not demonstrated that it would be unreasonable for him to relocate to another part of India.

6. On page 7 of the Decision, the Tribunal makes the statement that “the Applicant does not claim to have been persecuted by Hindus in the past.” This does not appear to be factually correct, as the applicant stated in his original application – “The location I was born in is occupied predominantly by Hindu followers. Consequently, I was discriminated and persecuted because of my religious beliefs.”  It is clear that the Tribunal had the Department’s file before it, including the application for the Protection visa (see page 4 of the Decision). This does appear to me to be a clear statement of persecution in the past.

7. The applicant described on page 5 of the Decision that there was a national network of Hindus and his wife’s family would always know where he was through their connection with Hindu extremist groups. In the Findings and Reasons on page 7 of the Decision, the applicant’s fears of being found are summarily dismissed with the words “I am not satisfied that there is any real chance that the Applicant’s wife’s family will have the will and the capacity to trace the Applicant and do him harm.” The Tribunal gives no reasons for this lack of satisfaction.

8. In conclusion, it appears to me that parts of the applicant’s case have not been properly considered by the RRT. Failure to consider relevant evidence is, to my mind, evidence of a failure to exercise jurisdiction and, as such, calls for the matter to be remitted to the Refugee Review Tribunal for rehearing.

9. The applicant should be aware that the decision of this Court does not guarantee that the Refugee Review Tribunal will necessarily make a decision in his favour. The Tribunal held a hearing under section 425 of the Migration Act because it was not able to decide the review in the applicant’s favour on the basis of the information before it. That situation remains unchanged. The decision of this Court is not a hearing on the merits of the application, and the applicant will need to remember the words of Kirby J in Guo (supra), that it is for him to persuade the Refugee Review Tribunal that he is a refugee.

10. The matter will be remitted to the Refugee Review Tribunal for rehearing.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 31 July 2003