SZCNL v Minister for Immigration
[2006] FMCA 259
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 259 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in India on the basis of his Muslim faith – independent country information – failure to appear at Tribunal hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(1)(a); 91R(1)(b); 91S; 424A(1); 424A(3)(a); 426; 426A; 474; 483 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 |
| Applicant: | SZCNL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG149 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 February 2006 |
| Date of Last Submission: | 9 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | R. Henderson |
| Solicitors for the Respondent: | Ms N. McLaughlin, Blake Dawson Waldron |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG149 of 2004
| SZCNL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 30 year old man who claims to be a citizen of India and of Islamic faith.
The Applicant arrived in Australia on 2 May 2003, having departed India from Mumbai airport on 1 May 2003 on a passport issued in his own name.
On 29 May 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claims that he is persecuted in India by reason of his Muslim faith. He claims that this persecution has increased since 1992 when the Hindu supporting Bharatiya Janata Party (“BJP”) came into power.
On 18 July 2003, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention as amended by the Refugees Protocol.
On 19 August 2003, the Applicant filed an application for review before the Tribunal. On 2 January 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 January 2004, the applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Orders made on 20 January 2005, the Applicant filed an amended application on 30 July 2004 (“Amended Application”) seeking review on grounds set out as follows:
1. The Tribunal committed jurisdictional error of law in that it failed to provide any meaningful opportunity to the applicant to comment in the independent country information accepted by it.
Particulars
(a) The RRT purports to rely on country information adverse to my claims as shown at folios 52; 53; 54; 55 and 56 of the Court Book. If I had been given a copy of that material and being made aware of its relevance I would have disputed its relevance to the determination of my application.
2. The RRT committed jurisdictional error of law in that it misunderstood an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by section 65 to grant or refuse the application.
Particulars
(a) The Tribunal failed to consider my claims fully or it failed to address a central element of my claims being the elements of the Convention ground of persecution on the basis of my religion or alternatively asked itself the wrong question by reason of misinterpretation of the elements of the said ground.
(b) The Tribunal totally ignored my evidence that I was attacked and harmed by my persecutors and it also failed to acknowledge my evidence that I attempted relocation to evade extremist Hindus. My evidence is shown at folios 7; 8; 9 & 10 of the Court Book.
3. In determining that the applicant is not entitled to the grant of a protection visa the RRT exceeded its jurisdiction, or committed a jurisdictional error.
Particulars
The RRT erred in the construction and application of s.91R of the Migration Act in failing to hold that the threats made to the applicant’s life constituted persecution in s.91R(2)(a).”
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
The Tribunal had before it the Department’s file, including the application for a protection visa and the Delegate’s decision record.
In his application for a protection visa the Applicant made the following claims:
a)That he is a single Muslim Indian man who was born in Mumbai. He claimed that he attended 10 years of school in Mumbai before gaining employment manufacturing chairs until he left India to come to Australia in May 2003.
b)That he is persecuted in India because he is a member of the Muslim religious faith which is the minority faith. He claims that the BJP Party now supports Hindus following riots that occurred in 1992.
c)That he has been “bashed” by Hindus and Shiv Sena and that he still has knife wound scars on his head and back.
d)That he cannot gain employment in India due to his Muslim faith. He claimed that his wage is not sufficient to live on.
e)That if he were to return to India he would be harmed and discriminated against and could be killed.
f)That he cannot live a normal peaceful life without fear of being thrown out of India for being a Muslim.
g)That the police will not offer him protection.
h)That he and other Muslims in India live in constant fear of being killed during communal riots.
i)That his parents have been expelled from their home and he does not know of their whereabouts. As their only son, he claimed that if anything happened to him there would be no-one to look after his parents.
On 2 October 2003, the Tribunal wrote to the Applicant informing him that it considered all of the evidence and could not make a decision in his favour on that material alone and invited him to attend a hearing and give evidence on 1 December 2003. On 19 October 2003, the Applicant returned a Response to Hearing Invitation to the Tribunal advising that he wanted to attend the hearing and give oral evidence. However, the Applicant failed to appear at the hearing on 19 October 2003, and failed to contact the Tribunal to explain this non-attendance.
Accordingly, the Tribunal proceeded, pursuant to s.426A of the Act, to make a decision on the review without taking any further steps to allow or enable the Applicant to appear.
The Tribunal noted that the Applicant failed to provide to the Tribunal any specific details of the harm he claims to have suffered at the hands of Hindus in India. Based on this lack of specificity, the Tribunal was unable to be satisfied, on the material before it, that the Applicant had suffered such harm nor that he had been denied state protection as he claimed.
The Tribunal rejected the Applicant’s claim that Hindu’s want to throw Muslims out of India, based on independent country information that indicated that his claim was exaggerated.
The Tribunal could not be satisfied, on the material before it, that the Applicant had been denied employment given the lack of detail of this claim. Further, the Tribunal noted that the Applicant claimed in his application for a protection visa that he was employed as a chair manufacturer indicating that he was able to gain employment. The Tribunal also noted that wages are typically low in India and therefore, without further information, it could not be satisfied that the Applicant’s claim that his wage was too low to earn a livelihood was for a Convention reason.
The Tribunal went on to ask itself what if it were wrong and concluded that if that were the case the Applicant could relocate to other parts of India. In particular, the Tribunal noted that Kashmir is a majority Muslim area where the Applicant could live without fear of attack from Hindus. Further, the Tribunal noted that the Applicant provided no evidence as to why relocation would be unreasonable in his circumstances.
On the basis of its findings, the Tribunal concluded that the Applicant does not have a well founded fear of persecution for a Convention reason. Accordingly, the Tribunal affirmed the decision of the Delegate to not grant a protection visa to the Applicant.
The proceeding before this Court
The Applicant was unrepresented before this Court, although he had the assistance of an interpreter.
At the outset of the hearing the Applicant sought an adjournment to gain legal advice. On 20 January 2005, orders were made by consent setting the matter down for hearing in this Court on 9 February 2006, with directions for the filing of further material by the parties. On
30 July 2004, the Applicant filed an Amended Application upon which she sought to rely at the hearing. No other document has been received from the Applicant since that date. There has been more than 12 months since the matter was set down for hearing for the Applicant to have sought and obtained any legal advice or other advice. Given the effluxion of time and the fact that the Applicant has taken no steps since January 2005 to seek advice, the application for adjournment was refused.
The Applicant was taken through each of the grounds identified in his Amended Application and invited to make any submissions. Other than to say that, if he was to return to India he would “definitely face some problems – people are still searching for me there”, the Applicant made no further submissions in support of those grounds.
The Grounds are dealt with below as follows.
Ground 1 - The Tribunal committed jurisdictional error of law in that it failed to provide any meaningful opportunity to the applicant to comment in the independent country information accepted by it
The Tribunal decision was handed down on 2 January 2004.
The Applicant’s complaint that the Tribunal relied on independent country information which it did not provide to the Applicant prior to the hearing is not jurisdictional error. The authorities are settled on this area of the law in that s.424A(3)(a), excludes from the requirements of s.424A(1), the obligation to give to an applicant, prior to a hearing independent country information that is not specifically about the applicant. It is otherwise a matter for the Tribunal the material to which it has regard and the weight it places upon such material. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 (“NAHI”) at [11], Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 139; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16])
For those reasons this Ground is rejected.
Ground 2A - The Tribunal failed to consider my claims fully or it failed to address a central element of my claims being the elements of the Convention ground of persecution on the basis of my religion or alternatively asked itself the wrong question by reason of misinterpretation of the elements of the said ground.
I understand this Ground to relate to a complaint by the Applicant that the Tribunal did not make findings in accordance with the claims made. Such a ground is essentially cavilling with the findings of the Tribunal. This Court has no power to conduct merits review (NAHI at [10]).
The Tribunal would appear to have correctly identified the Applicant’s claim as one of persecution by Hindus or Shiv Sena on the Convention ground of religion because he is a Muslim.
The Applicant did not appear before the Tribunal, despite having been invited to attend the hearing. Pursuant to s.426A of the Act, the Tribunal proceeded with its review, without offering the Applicant a further opportunity to appear before it. That course was open to the Tribunal and there is no jurisdictional error arising from the Tribunal decision to proceed with the review in the absence of the Applicant.
The Tribunal had before it the claims made by the Applicant in support of his application for a protection visa and the claims made in his application for review. His application for review makes the following claims:
“Situation in in India is still same. Hatred toward Muslim is still increasing among Hindus. Muslims are ill treated in every aspect of social & economical life. They live in constant fear of getting killed in communal violence. My parents in India were thrown out of own house and I don’t know any thing about them and their where about.
DIMIA decision is base on general information and they have not consider how individual have suffered. I am the only son of my parent and if anything worst happen to me who will look after them. I request you to consider my case and grant me a refugee status so I can live peacefully and support my parent. I will prefer to present my case in personal interview.”
The Tribunal noted with some detail the claims made by the Applicant but concluded that, without any further information, it could not be satisfied that any harm suffered was for a Convention reason. The Tribunal noted that the Applicant did not provide specific details of the harm he claimed to have suffered from militant Hindus nor that he was denied state protection as a result of any persecution by the Hindus.
The Tribunal also noted that, whilst the Applicant claimed, in his application for a protection visa, that he was “running from one place to another”, it was reasonable in circumstances for the Applicant to relocate if he wished, to Kashmir, being a State where Muslims are in the majority and where the Applicant “might live free of any Hindu attack.” The Tribunal noted that the Applicant provided no evidence as to why relocation to Kashmir would not be a reasonable option. In finding that relocation is reasonable in the particular circumstances of the Applicant, the Tribunal noted that the Applicant spoke both Hindi and English and had shown that he could live independently in Australia away from family support. The Tribunal found that those attributes would be of assistance in the Applicant settling elsewhere in India.
The Tribunal considered the claims of the Applicant and concluded that it was not satisfied that the Applicant was a person with a well founded fear of persecution for a Convention reason and was therefore not a person to whom Australia owes protection obligations, pursuant to the Refugees Convention as amended by the Refugees Protocol.
In failing to appear at the hearing, the Applicant is taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of the Applicant’s material would be noted by the Tribunal, without an opportunity for the Applicant to explain or clarify them. In those circumstances, the Applicant cannot complain if his application was rejected because, amongst other reasons, he failed to take up the opportunity to appear. (See s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (“s58”) at [25-26]).This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:
“There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.
Accordingly, this Ground is not made out.
Ground 2B - The Tribunal totally ignored my evidence that I was attacked and harmed by my persecutors and it also failed to acknowledge my evidence that I attempted relocation to evade extremist Hindus. My evidence is shown at folios 7; 8; 9 & 10 of the Court Book.
Other than saying that he was “running from one place to another” the Applicant provides no detail of attempted relocation. In any event, the Tribunal considered the issue in light of the evidence before it and made the findings and conclusions referred to at paragraph [36] above. Those were findings were open to the Tribunal on the material before it.
Accordingly, this Ground is not made out.
Ground 3 - In determining that the applicant is not entitled to the grant of a protection visa the RRT exceeded its jurisdiction, or committed a jurisdictional error
There are no particulars provided in respect of this ground.
It is a matter for the Applicant to satisfy the Tribunal that he satisfies the criteria for a protection visa (ss.65; 36(2) of the Act). In considering whether the Applicant fulfils that criteria the Applicant must satisfy the Tribunal that the essential and significant reason for any persecution is for a Convention reason and that such persecution involves serious harm (s.91R(1)(a) and (b)).
The Tribunal noted that there were no specific details of the harm the Applicant claims to have suffered at the hands of the militant Hindus. The Applicant stated in his application for a protection visa that he was “bashed” and was attacked by Hindus with a knife leaving marks in his back and head. However, there were no other details provided by the Applicant. As referred to above, it is for the Applicant to satisfy the Tribunal that he is a person to whom Australia owes protection obligations pursuant to the Refugees Convention. It is a matter for the Tribunal whether or not it is satisfied that the harm claimed to have been suffered by the Applicant occurred or whether any harm found was serious harm for the purposes of s.91R or whether the Applicant was denied state protection. The Tribunal was not satisfied that the Applicant suffered any harm at all. That finding was open to the Tribunal on the material before it. It was therefore not necessary to consider s.91R.
Accordingly, this Ground is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Accordingly, the Application is dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 24 February 2006
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