SZCAH v Minister for Immigration - [2006] FMCA 152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 152

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India claiming fear of persecution because of his association with a woman from another community – merits review – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A

Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Applicant:

SZCAH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2587 of 2003

Judgment of:

Scarlett FM

Hearing date:

30 January 2006

Date of Last Submission:

30 January 2006

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Ms Pepper

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2587 of 2003

SZCAH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 9^th October 2003 and handed down on 4^th November 2003. The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of India. He arrived in Australia on

19^th June 2003. On the 23^rd of that month he lodged an application for protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. Three days later on 26^th June a delegate of the Minister refused to grant that visa, and on 17^th July the applicant applied for a review of that decision by the Refugee Review Tribunal.
In his application for review the applicant said that his fear of convention based persecution was well founded. He feared that there was a real chance that he would face danger at the hands of some fanatical religious groups in India who oppose inter-religious marriage. He further submitted that the Government of India was powerless to protect people who face persecution at the hands of those people who are opposed to marriage between people of different religions. He also submitted that relocation to an urban area would not change his position of being killed or harmed by those people who would seek to harm him, and relocation was not a reasonable option in the circumstances.
The Tribunal wrote to the applicant on 19^th August 2003 inviting him to attend a hearing on Thursday, 2^nd October. The applicant attended the Tribunal and gave oral evidence. He told the Tribunal that he had moved around within and outside Hyderabad with the assistance of a friend who owned a chain of bakeries. Eventually he went to Bombay.
The Tribunal spoke to him about the controversial issue of intercommunal marriage in India, and about the fact that such marriages do occur and there is a law which provides for them.

The applicant told the Tribunal that he had had no contact with the lady that he wished to marry since arriving in Australia. He had not had any contact with her since early December 2002. The Tribunal member asked him whether from her point of view he had not just simply disappeared and was out of her life. The Tribunal asked the applicant if the lady would be in a situation where her father would be looking for a suitable husband for her, but the applicant said that she would only marry him.
The Tribunal considered independent country information about the situation of women in India and their rights under the law and under the constitution in India. It also considered reports about the reality of the situation which regrettably showed that there was an increase in violence against women.
The Tribunal in its findings and reasons accepted that the applicant was a citizen of India, but did not accept that the applicant feared persecution because of his political opinions. The Tribunal admitted that the applicant’s views about inter-faith marriage were controversial in India, but said that there were many who hold those views.

The Tribunal noted that the applicant claimed to fear persecution because of his religion and because of the violent opposition of his girlfriend’s Hindu family to his wish to marry her. The Tribunal noted that the lady concerned did not know that he is in Australia, and pointed out that he gave no evidence of his relationship or the attack that he said was made on him by the girlfriend’s brother.
The Tribunal expressed serious doubts about the relationship, although was willing to accept the applicant’s claim that there was a relationship which led to his being attacked in his home town. The Tribunal did not accept that it was an ongoing relationship, and did not accept that the applicant was threatened or beaten in Hyderabad. The Tribunal did not accept that the applicant was threatened in Bombay, and did not accept his claim that mere support of intercommunal marriage would give rise to persecution. As a result, the Tribunal was unable to be satisfied the applicant would face risk of harm amounting to persecution for a convention reason if he were to return to India, and affirmed the decision not to grant a protection visa.
In his application for judicial review which was filed at this Court on 27^th November 2003, the applicant claimed that the Tribunal had acted in excess of jurisdiction and had erred in fairness and administrative procedure. He said that although he was present at the hearing, the independent evidence used in the Tribunal’s decision was not brought to his attention for comments.
The applicant gave three grounds upon which he relied. First, he said that a reasonable Tribunal could not use information unfavourable to his claims to form an opinion and make decisions on his case without giving him the opportunity to comment on independent country information.
His second ground was that the available independent information clearly shows that intercommunal marriage continues to be controversial in India. He submitted that the Tribunal had failed to understand the extent and the seriousness of the dangers faced by those people who publicly campaigned for tolerance on intercommunal marriages.
The applicant’s third ground was that relocation to another part of India would be unreasonable. This was because intercommunal marriage is controversial in all parts of India, and he would continue to express his views publicly if he were to return.
The applicant complained that the Tribunal used independent country information without giving him the opportunity to comment on it.

I have read the independent country information. It does not relate to the applicant personally or other specific individuals. It consists of general comments about intercommunal marriage and violence against women in India. It therefore falls into the exception to s.424A of the Act. It is found in s.3 of s.424A. It is submitted on behalf of the respondent Minister, and I believe legally correctly, that because of the operations of s.422B of the Migration Act no further obligation arose.
In any event it is clear from page 71 of the Court Book that the Tribunal member did discuss the country information, or at least some relevant aspects of it, with the applicant. This ground must therefore fail.
The second ground relating to independent country information and the continuation of the fact that intercommunal marriage is controversial in India, is to my mind no more than a traversing of the Tribunal’s factual findings. The applicant claimed that the Tribunal failed to understand the extent and the seriousness of the dangers faced by people such as him who do campaign publicly for a more tolerant attitude towards intercommunal marriage. The applicant is certainly entitled to hold that view, but unfortunately for him a Court conducting judicial review does not review the Tribunal’s factual findings. It is not open to the Court to consider the facts again and substitute its own decision on the facts for those of the Tribunal member. The Tribunal is the sole arbiter of the facts. This is well established in the decision of Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, particularly at [423].
Turning to the third ground relating to relocation, whilst the issue of relocation within India was discussed by the Tribunal with the applicant during the hearing, it is clear that the Tribunal did not make any findings as such about relocation and, as the respondent submits, the issue of relocation did not form any part of the Tribunal’s reasoning in the earlier delegate’s decision.
As I said, the Court does not engage in a merits review. The evidence before the Court makes it clear that the Tribunal considered the evidence and made findings supported by the evidence. There was material in the evidence which allowed the Tribunal to make those findings. See Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at [558]-[559], also WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [30]. In short, it is submitted by the Minister, and I believe correctly, that there is no evidence that the Tribunal did nothing other than exercise its power in a bona fide way, see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
The decision of the Tribunal was largely based on the facts. It was a significant feature of the Tribunal’s decision that the applicant’s relationship with the lady concerned was, in the Tribunal’s view, no longer an ongoing relationship. Whilst the applicant took the view that the lady concerned would marry no-one but him, in my view evidence of a relationship where the parties had had no communication since 2002, the applicant had left India in 2003 and the lady concerned was not even aware that he was in Australia, is sufficient to enable the Tribunal to arrive at the conclusion that the relationship was no longer ongoing. This is perhaps a sad situation, but it was open to the Tribunal on the evidence to make that conclusion.
The other point that is significant to my mind is that whilst the Tribunal accepted the applicant’s evidence that he had faced attacks, criticism and a hostile reaction from the lady’s family at the time, the Tribunal was not satisfied that there was a wide ranging hostility towards the applicant in other parts of India such as Bombay and Hyderabad.

The Tribunal relied on independent country information to show that, in its view, a person who argued that there should be tolerance towards intercommunal marriages in general would not face a risk of persecution, even though there had been hostility directed towards the applicant by the family of the lady whom he wished to marry in their local area.
These are factual findings. There is evidence to show that the Tribunal was entitled to make those findings of fact which were adverse to the applicant’s case. The Court does not reconsider the facts and make its own findings on the facts. Findings of fact are for the Tribunal.
I have read through the decision thoroughly because I am mindful of the fact that the applicant is not legally represented. I see no other jurisdictional error or suggestion of one. I am satisfied that there is no jurisdictional error and that the decision of the Tribunal is a privative clause decision. It follows then that the application must be dismissed.
The applicant has been unsuccessful in his case and, in my view, it is appropriate to make an order for costs. The amount sought is the sum of $4,000.00 inclusive of counsel's fees which, to my mind, is well within the range envisaged by the Federal Magistrates Court Rules 2001.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 6 February 2006