SZBUS v Minister for Immigration
[2005] FMCA 367
•21 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUS & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 367 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and political persecution in India – applicants declining hearing invitation given by the RRT – no reviewable error found – application dismissed. |
Minister for Immigration v Guo (1997) 144 ALR 567
Minister for Immigration v Wu Shiang Lang (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Re Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407
Selvadurai v Minister for Immigration (1994) 34 ALD 347
| First Applicant: | SZBUS & SZBUT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2341 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 21 March 2005 |
| Delivered at: | Griffith |
| Delivered on: | 21 March 2005 |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2341 of 2003
| SZBUS |
First Applicant
SZBUT
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 10 September 2003 and handed down on 7 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the first applicant and his wife protection visas. The applicants are from Gujurat State in India. They have made claims of religious and political persecution. Relevant claims were made by the first applicant, the applicant husband. Background facts are set out in written submissions prepared on behalf of the Minister by Mr Markus. I adopt as background relevant parts of paragraphs 2-15 of those written submissions:
The applicants are husband and wife and citizens of India[1]. The applicants arrived in Australia on 29 October 2002[2]. On 5 November 2002 the applicants lodged an application for a Protection (Class XA) visa[3]. Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.
[1] court book, pages 1, 13, 25
[2] court book, page 14
[3] court book, pages 1, 69.2
The applicant’s claims were detailed in an undated statutory declaration by the applicant attached to the protection visa application[4] and in the application for review to the RRT[5].
[4] court book, page 29
[5] court book, page 52
In summary, the applicant claimed a well founded fear of persecution in India on the bases of his religion (Hindu) and political opinion. In particular, he claimed as follows:
·after communal riots in Gujarat in early 2002, Muslim fanatics targeted and threatened to kill him because he was an active member of Viswa Hindu Parishad (“VHP”), a Hindu organisation;
·also, the police accused him of instigating violence and he feared being prosecuted by them;
·he went into hiding with his wife during which there were several attempts on his life; and
·in September 2002 there was a renewed outbreak of communal violence and the police and Muslim extremists starting searching for him, and he therefore left for Australia with his wife in October 2002[6].
[6] court book, pages 29, 72.4-73.4
After the Minister’s delegate refused the applicants’ application for a protection visa on 4 December 2002, the applicants applied to the RRT to review that decision on 3 January 2003[7].
[7] court book, pages 50-53, p.54.4
On 4 August 2003 the RRT sent a letter to the applicants[8], at their mailing address[9], which was also the address of their authorised recipient[10], stating:
[8] court book, pages 56-57
[9] court book, page 50.8
[10] court book, page 50.7
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicants to a hearing on 2 September 2003.
On 29 August 2003 the RRT received a facsimile from the applicant, which advised that he had a physiotherapy appointment on 2 September 2003 and was unable to attend the hearing. The applicant requested a later hearing date.[11]
[11] court book, pages 61-62
On 2 September 2003 the RRT sent a further letter to the applicants[12], at their new mailing address[13], stating:
[12] court book, pages 63-64
[13] court book, page 60.7
On 29 August 2003 you asked the Tribunal to postpone your hearing. The Member reviewing your case has agreed to your request.
The letter invited the applicants to a new hearing on 22 September 2003.
On 9 September 2003 the RRT received a facsimile from the applicant, which advised that the applicants did not wish to attend a hearing and that they consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it.[14]
The RRT’s decision
In view of the response to the hearing invitation received by the RRT requesting that the matter be decided without a hearing, the RRT proceeded to determine the application on the evidence available to it.[15]
The RRT was not satisfied on that evidence that there was a real chance that the applicant might face persecution in the foreseeable future for his religion or for any other Convention reason. The RRT was therefore not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention[16].
The RRT rejected the application for review to it on two independent bases.
First, the RRT found that the applicant’s fear of persecution was not well-founded. Whilst the RRT accepted independent evidence that there were significant tensions between Muslims and Hindus in Gujarat, the RRT found the applicant’s claims (that Muslim extremists were searching for him or that there had been attempts on his life) to be unconvincing and did not accept them. The RRT also found that the applicant had fabricated his claims of being sought by the authorities.[17]
Secondly, and in the alternative, the RRT also found that, in view of the applicant’s educational qualifications and language skills, relocation to other parts of India was a reasonably available option for the applicants.[18]
[14] court book, page 64
[15] court book, page 71.8
[16] court book, pages 77.10-78.4
[17] court book, page 77.4
[18] court book, page 77.8
The applicants rely on an amended application filed on 28 January 2004. Mr Markus sets out the grounds in that application in paragraph 16 of his written submissions. I adopt that paragraph as background for the purposes of identifying the grounds of review:
The applicants filed an amended application in this Court on 28 January 2004. It states six grounds of review, that:
a)the solicitors for the respondent had failed to provide the applicants with the “Green Book”; and
the RRT committed jurisdictional errors by:
b)holding against the applicants that they did not attend the hearing, when that was “due to reasons beyond their control”, including illness;
c)failing to accept that the applicant, as a member of the VHP, had been the target of the local Muslim population and was suspected of having been involved in fundamentalist Hindu activities;
d)holding against the applicant his inability to provide documentation to corroborate his membership of the VHP;
e)inferring that because the applicant was able to leave India legally that he was not wanted by the authorities;
f)finding that it was possible to relocate to another state in India because of the applicant’s knowledge of Hindi, English and Gujarati.
I received into evidence the book of relevant documents filed on 27 April 2004. That is the only evidence I have before me. The applicants have not taken up the opportunity afforded to them at a directions hearings conducted on 18 March 2004 to file and serve evidence in support of their application on or before 31 May 2004. Mr Markus deals with the grounds advanced by the applicants in paragraphs 18-24 of his written submissions. He augmented those written submissions orally this morning. Neither applicant wished to make any oral submissions. Subject to my comments from paragraph 4 below, I agree with Mr Markus’ submissions and adopt them for the purposes of this judgment:
It is apparent from the grounds above that the applicants seek to agitate the merits of the RRT’s decision, and its assessment of the credibility of the applicant’s claims. This is not open in an application for judicial review: Minister for Immigration v Wu Shiang Lang (1996) 185 CLR 259 at 272; Re Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407 at [67].
Whilst it is accepted that the applicants are not satisfied with the decision of the RRT, it is not surprising that the RRT reached the decision it did in view of the fact the applicants had been advised that a favourable decision could not be made and they were offered hearings, the first of which was postponed in response to the applicant’s request and the second they declined, and they did not submit any further material. In those circumstances the claims made by the applicants in their application for review to this Court are baffling.
Briefly addressing the grounds above:
·Ground (a) is a complaint by the applicants about a procedural aspect of these (judicial review) proceedings and does not relate to the RRT’s decision. In any event, it is noted that the first directions hearing was not held until 18 March 2004, at which time directions were made for the filing of the bundle of relevant documents.
·In relation to ground (b), it is noted that the first hearing was postponed at the applicant’s request, and that the applicants declined to attend the second hearing.
·With respect to grounds (c) to (e), these were all matters for the RRT to determine, and the findings made were open on the evidence before it.
·In relation to ground (f), it is noted that the RRT actually found that relocation, in the circumstances of the applicants’ case, was reasonable. Once again, the respondent submits that this finding was open to the RRT on the evidence before it.
There is no error, let alone error amounting to a jurisdictional error, arising from the way in which the RRT dealt with the applicant’s claims.
Generally, it is accepted by the respondent that “proof” of persecution in the context of an application for protection visa is a matter of some complexity, and that a liberal attitude on the part of the decision-maker is called for, since a person who claims to be a refugee may have difficulties in proving his allegations: Randhawa v MILGEA (1994) 52 FCR 437 at 451.
On the other hand:
·The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the RRT to determine: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292.
·The RRT does not have to possess rebutting evidence before holding that a particular assertion is not made out: Heerey J in Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348.
·Nor is the RRT required to accept uncritically any and all claims made by an applicant: Beaumont J in Randhawa ibid at 451.
·On review of an adverse decision by a delegate of the Minister, such as here, it is for the applicant to satisfy the RRT that all of the statutory elements are made out: Minister for Immigration v Guo (1997) 144 ALR 567 at 596. The criteria for the grant of a protection visa require that the RRT be “satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”: Regulation 866.221.
There is no error amounting to a jurisdictional error arising from the way in which the RRT dealt with the applicant’s claims.
I satisfied myself that the applicants had the court book of relevant documents available to them for the purposes of today’s hearing. I agree with Mr Markus in any event that the issue of the availability of the court book has no significance in terms of the validity of the RRT decision. I also agree with Mr Markus that the application before the Court is substantially an attack upon the merits of the RRT decision. It is apparent that the applicants were unsuccessful before the RRT as the presiding member was not satisfied that the first applicant’s claims were genuine. In particular, the presiding member was concerned about the credibility of the first applicant’s claims of political persecution. While the presiding member accepted that there were significant religious communal problems in Gujurat he did not accept that these applicants had a genuine fear of harm as a result of those communal problems.
The decision and reasons in this matter have been rather sloppily prepared. On page 71 of the court book, immediately under the heading “Claims and Evidence” an irrelevant paragraph has been included. I ignore that paragraph for the purposes of this decision. On page 76 of the court book, in the middle of the page, are two further irrelevant paragraphs relating to the State of Maharasta. The applicants come from Gujurat. Also, I am not entirely convinced that what appears in the preceding paragraph “Muslims and Hindus in India” is factually relevant. It is possible that the presiding member has confused language statistics with religion statistics. Country information concerning language statistics appears on pages 105 and 106 of the court book. It is possible that the presiding member has confused statistics relating to the use of the Hindi language with adherence to the Hindu religion. Frankly, I am not sure. There is no mention in that paragraph on page 76 of the court book to the State of Gujurat. There should have been some mention of it both because that is where the applicants come from and because it is well known that there is a significant Muslim minority in Gujurat and other country information referred to by the presiding member deals with well known religious conflict in that State. It is possible that the presiding member was confused about aspects of the country information before him. It appears that the presiding member may have made some factual errors in considering that information. However, factual errors do not necessarily point to any jurisdictional error. The presiding member was in no doubt that the applicants’ claims should be rejected.
The applicants had declined a hearing invitation sent to them. The applicants had earlier sought and obtained an adjournment of the RRT hearing. The first applicant confirmed to me this morning that the signature on page 64 of the court book is his. In the circumstances, the presiding member was entitled to proceed in the absence of the applicants. The RRT had already advised the applicants in writing that it was unable to make a favourable decision on the basis of the documents submitted. Having declined the second invitation to attend a hearing it is not surprising that the RRT dismissed their application.
There is, in my view, no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. I must dismiss the application for judicial review.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Markus seeks an order for costs fixed in the sum of $4,500. The applicants did not wish to make any submissions on costs. I am satisfied that costs and disbursements of not less than $4,000 have been properly and reasonably incurred on behalf of the Minister. I will order that the applicants pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 April 2005
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