SZCQX v Minister for Immigration

[2006] FMCA 777

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 777

MIGRATION – Application to review decision of Refugee Review Tribunal – failure to comply with section 424A of the Migration Act 1958 – relief withheld.

Migration Act 1958, ss.422B, 424A

Applicant S20of 2002vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59
Craig v South Australia (1995) 184 CLR 163
Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal  & Ors (2002) 76 ALJR 966
NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 140 FCR 27
NAHI vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZBNK vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 361
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEPQ vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 133
VBAP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
VWST vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286

Applicant: SZCQX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG326 of 2004

Judgment of: Barnes FM

Hearing date: 11 May 2006

Delivered at: Sydney

Delivered on: 11 May 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms S Mason

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal be added as second respondent to the proceedings.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG326 of 2004

SZCQX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 February 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, a citizen of India, arrived in Australia in July 2003 and applied for a protection visa.  The application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing. 

2. The applicant's claims in essence were that he joined the Tamilnadu Muslim Munnetra Kangagam (TMMK) in 1997 and was subsequently appointed secretary of the youth division.  He claimed to fear persecution from an extremist Hindu group, the RSS, as a result of his activities with the TMMK and his religion as a Muslim.  In particular, he claimed that in April 2003 an important meeting and procession by the TMMK was attacked by the RSS, that the police refused to investigate and also that while he was absent his electronics shop was destroyed by RSS people looking for him.  He also claimed that his wife was threatened and that he had been told by his colleagues that he should flee.  He moved to Chennai (Madras) for two months and then came to Australia.  In the course of the Tribunal hearing, the applicant also told the Tribunal that he had been detained by the police five or six times for 10 to 15 days when politicians visited his local area.

3. The Tribunal reasons for decision, which are the only record of what occurred in the Tribunal hearing, also record that the Tribunal raised with the applicant whether it would be reasonable for him to relocate in India and discussed with him a number of issues to which I will return. 

4. The Tribunal accepted that the applicant was a national of India and a Muslim.  On the basis of independent evidence it was satisfied and found that merely being Muslim was sufficient to give rise to a well-founded fear of persecution for the reason of religion or any other Convention reason.

5. It found however that the applicant had given his oral evidence in a generally vague manner, that much of it was not consistent with written submissions to the Department, and that some was internally inconsistent.  It also found that none of his claims were supported by documentary evidence.  In particular it referred to the applicant’s description of an attack in Tamil Nadu in April 2003 which he claimed had been reported in the Indian press.  He had not provided supporting documentation.  The Tribunal noted that incidents of a similar level of severity in other states were reported in the US State Department report and and that one would have expected to see some reference in that document to such a serious incident in Tamil Nadu.

6. The Tribunal considered the applicant's claim to have been the target of police and RSS harassment before April 2003 to be highly implausible, particularly as he had made no mention in his written claims of repeated detentions by the police and because his description of his problems with RSS was so vague that the Tribunal was unable to accept that he had such problems.  

7. The Tribunal accepted that in some circumstances the persecution claimed may be localised such that an applicant may have a well-founded fear in a particular part of the country of origin and in such case the availability of protection in the remainder of the country must be considered. 

8. The Tribunal considered relocation on the assumption, albeit that it expressed doubts about it, that the April 2003 incident had occurred in the applicant's home town.  It considered on that basis that the applicant could reasonably be expected to relocate within India, having regard to his agreement that the local Tamil Nadu and RSS would be unable to locate him if he moved to another state, to the fact that India was a large and populous country and that local RSS members appeared, as he had conceded, to have neither the means nor the desire to locate him elsewhere.  The Tribunal found that this was illustrated by the applicant's evidence that his wife had received no threats since moving to a house near the family’s previous home.  It also had regard to independent information, with which the applicant agreed, that despite incidents of violence and discrimination during 2003, relations between various religious groups in India generally were amicable among the substantial majority of the citizens. The Tribunal was satisfied that if the applicant had been of any interest to the police outside his home town and if they wished to arrest him as claimed, they would have done so when he departed India via the airport in the capital of Tamil Nadu.  For these reasons it found that any risk of harm faced by the applicant because of his religion or a political opinion imputed to him was confined to his home town. 

9. The Tribunal then addressed whether it would be reasonable to expect the applicant to relocate.  It had regard to country information about the absence of restrictions on moving from state to state in India, the absence of local police checks on new arrivals and also found that the applicant appeared to have the qualities necessary to enable him to relocate.  It referred to the fact that the applicant willingly moved to an environment (Australia) in which he neither spoke the language nor had any friends or relatives and that if he were to relocate within India the circumstances would be, at worst, the same.  It also found that it appeared that the applicant could relocate within Tamil Nadu itself, where the risk of Convention-related harm would be remote. The Tribunal referred, in particular, to the size, commercial activities and population of Chennai (the capital of Tamil Nadu) and to the fact that Tamil was the main language.  For these reasons the Tribunal found that it would be reasonable for the applicant to relocate within India and that if he did so his fear of Convention-related persecution would not be well founded.

10. The applicant sought review of the Tribunal decision by application filed in this Court on 10 February 2004.  He filed an amended application on 19 July 2004 which relies on one ground, that the decision took into account an irrelevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa. He filed written submissions on 28 February 2006 which in fact raise a variety of other grounds not referred to in the amended application.  It is convenient to consider first the grounds raised in the applicant's written submissions which were addressed in oral submissions by counsel for the respondent.  Several of these grounds are expressed generally without particularisation but each of them has been considered. 

11. The first ground is that the Tribunal did not follow proper procedures required by the Migration Act 1958 and in particular that it fell into error in the manner considered in Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal  & Ors (2002) 76 ALJR 966 and that a breach of the rules of natural justice occurred.

12. However, the factual basis for a claim such as was made out in Muin and Lie is not established in the circumstances of this case.  There is no evidence that the documents generally referred to as Part B documents but in fact in this case appearing in Part C of the delegate's decision, were not taken into account or indeed as to any representation that they would be taken into account or reliance by the applicant on such representation.  In particular there is no statement of agreed facts in relation to such matters as was the case in Muin.  Jurisdictional error is not established on this basis. 

13. The applicant’s submissions make a number of general statements (without reference to the specifics of the Tribunal decision in issue) such as a general but unexplained reference to a breach of the rules of natural justice, a contention that the Tribunal asked itself the wrong question and did not take into consideration the applicant's oral evidence.  Of themselves these contentions do not establish a jurisdictional error. 

14. That the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  There is no evidentiary basis for the applicant's contentions in relation to what did or did not occur in the hearing. 

15. The applicant also takes issue with the Tribunal's use of country information, claiming that the Tribunal did not “use the country information as specific” and that the general information gathered by the Tribunal weighed against his case in the final outcome, that the Tribunal used all the information as a matter of reasoning and valuation of his case, that the Tribunal was preoccupied and did not have the fresh look and that it also failed to consider the Amnesty International country information.  Insofar as the applicant takes issue with the Tribunal use of independent country information, the use made of particular items of country information and the weight given to items of country information is a matter for the Tribunal (NAHI vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

16. It is contended that there was information put before the Tribunal by the applicant to which it failed to have regard.  In a letter to the Refugee Review Tribunal of 10 January 2004 the applicant sought an adjournment of the Tribunal hearing and indicated that he was waiting to receive relevant documentary evidence to support his review application.  However on the material before the Court it appears that no such information was provided.  It has not been established that the Tribunal failed to take into account the material and claims put before it by the applicant. 

17. More generally no jurisdictional error is established or apparent in the manner in which the Tribunal treated or had regard to the country information.  Rather, the Tribunal reasons for decision reveal not only that the Tribunal considered at some length independent country information in relation to the situation in India, but also that aspects of that independent country information to the applicant in the course of the Tribunal hearing.  It has not been established that there was any lack of procedural fairness. 

18. The general contention that the Tribunal decision was affected by error of law or jurisdictional error is not specific and takes the matter no further.  It is also contended that the Tribunal did not consider the application and did not give the applicant a fair chance to provide oral arguments without fear.  However the Tribunal reasons for decision reveal that it did consider the applicant's application for refugee status on the basis of the claims apparent on the material before the Court and there is no evidentiary basis to support his claim that he was not given a fair chance to provide oral arguments without fear.  Insofar as the applicant seeks merits review either in this or in any other of the grounds relied upon, merits review is not available in this Court. 

19. The next ground is that the procedures required to be observed under s.424A of the Migration Act 1958 (C’th) (the Act) in connection with the making of the decision were not observed. As expressed, that does not particularise a jurisdictional error. However I will return to the question of s.424A which was quite properly addressed by the respondent in written submissions.

20. The next ground is that the Tribunal ignored relevant evidence and its finding in the face of contradicting independent evidence indicated actual bias. Such an allegation is a serious allegation which needs to be specifically made and proved. There is authority that it is a rare case in which actual bias or indeed a lack of good faith would be established on the decision alone. In this case there is no evidence before the Court to support or establish that the Tribunal ignored relevant evidence, made a finding in the face of contradicting evidence such as to constitute actual or indeed apparent bias or otherwise as to give rise to a breach of procedural fairness. In relation to the allegation of a lack of procedural fairness, I note that the applicant's application to the Refugee Review Tribunal was made after s.422B of the Migration Act came into effect. In light of my finding that there is no denial of procedural fairness it is not necessary to consider the precise effect of that provision.

21. The next ground is that the Tribunal member ignored the merits of the claim and did not take into consideration the “verdict” from the independent country report.  It is not clear which specific item of country information is referred to in this complaint.  The Tribunal did refer to a number of items of independent country information, including the United Kingdom Home Office Country Assessment, India.  The Tribunal did take into account information from that report.  No jurisdictional error is apparent in the manner in which it did so.  Nor is it apparent that the Tribunal ignored the applicant's claims.  Similarly, it is claimed under paragraph 8, that the Tribunal did not consider the applicant’s claims.  As I have indicated, no such failure is apparent on the material before the Court. 

22. The next paragraph claims that there was a lack of procedural fairness and then refers to an often cited quote from Craig v South Australia (1995) 183 CLR 163 at 197 in relation to the scope of jurisdictional error. Again this general assertion without any particularisation does not establish a jurisdictional error.

23. Paragraph 10 contends that while deciding the protection visa application the Tribunal went through a range of documents listed as Part C:

    “One of the documents listed in Part C relating to India, others to establish my claim as a refugee.  It appeared that the Tribunal otherwise referred to these documents in negative aspects not to grant me a protection visa.” 

24. It is not entirely clear what is meant by this claim as the Tribunal decision does not have a Part C.  It may well be that this is intended to refer back to Part C of the delegate's decision which includes a number of documents which relate to India.  In any event the applicant's contention that the Tribunal, in effect, did not give the weight to particular items of country information which the applicant saw as appropriate or did not reach the result which the applicant sought on the basis of the independent country information before it does not establish a jurisdictional error.  As indicated, merits review is not available in this Court and the weight to be given to items of independent information is a matter for the Tribunal. 

25. The eleventh ground is that the application was not taken into consideration properly and that the decision relied upon general facts, that there was a denial of procedural fairness and that it appeared that a letter in similar terms to that in Muin had been sent.  Those claims have been discussed above in relation to the earlier grounds in written submissions.  In ground 12 issue is taken with the merits of the Tribunal decision.  Merits review is not available.  This is not a rehearing and it is not for the Court to determine whether the applicant is a refugee.  Finally, in ground 13 the applicant seeks a favourable decision.  No jurisdictional error is established on the basis contended for in the written submissions. 

26. Turning then to the amended application filed on 19 July 2004, the applicant claims that the Tribunal decision was “effected” to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.  Again, this is a somewhat confusingly expressed ground particularly as it is clear from the amended application that the decision in respect of which review is sought is the Tribunal decision notified to the applicant on 4 February 2004.  However, the particulars in the amended application provide more clarity.  The first particular is that:

    “The Tribunal to consider in assessing the chance of the applicant being arrested or persecuted on his return to India based on the fact he was Muslim in India, a member of a particular social group in India.”

27. This appears to be a claim that the Tribunal did not consider the fact that the applicant was a Muslim and a member of a particular social group.  However, it is apparent from the Tribunal reasons for decision that it understood the basis for the applicant’s claim, accepted that he was a Muslim and considered his claim to have a well-founded fear of persecution on that basis. 

28. The second particular is that the Tribunal's satisfaction that the applicant was not a refugee “was not based upon reasoning which provided a rational or logical foundation for this belief”.  No further particulars are provided to support this assertion.  There is no support for this ground in the materials before the Court. 

29. It is not necessary to consider in any detail the extent to which a claim based on a lack of logic or where an alleged illogicality is associated with the identification of a particular ground of review, as no lack of rationality or logic such as to evidence, constitute or give rise to a jurisdictional error is established.  I note that there is nothing in the applicant's written submissions that clarifies what is intended to be raised by this aspect of the amended application.  In relation to the extent to which lack of logic can be considered a jurisdictional error, see in particular, the decision of the Full Court of the Federal Court in VWST vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] and note the suggestion in Applicant S20of 2002vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59 that it is necessary for an applicant to identify a particular principle or ground of review rather than to just rely on an alleged illogicality. Also see further, SZBNK vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 361.

1. However, it is conceded by counsel for the respondent that while the applicant did not plead any breach of s.424A of the Migration Act, consistent with the approach to that section taken by the majority of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 it is necessary to consider the operation of s.424A and s.424A(3)(b) as the Tribunal had regard to inconsistencies between the applicant's written submissions to the Department and his oral evidence to the Tribunal which it took into account in leading it to doubt the credibility of the applicant's claims. The information contained in the applicant's statement to the Department was not provided to the applicant in writing pursuant to s.424A and there is no suggestion for the respondent or on the material before the Court that the applicant republished such information such that it could be said that he gave that information to the Tribunal within the exception in s.424A(3)(b).

2. The respondent concedes that there is a failure to comply with s.424A of the Migration Act. However it is contended for the respondent that despite the breach of s.424A the Tribunal went on to find that if the applicant’s claims were true, it would be reasonable for him to relocate within India. On this basis, consistent with what was stated by Allsop J in SZEEU at [233], there was a basis for the decision entirely independent of the failure to follow s.424A. As his Honour suggested that that would be sufficiently analogous to the alternatives referred to in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58] per Gaudron and Gummow JJ in relation to the exercise of the discretion to refuse relief to warrant the withholding of relief.

3. Consistent with the reasoning of Allsop J (with whom Weinberg J agreed) in SZEEU, in VBAP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] North J considered an argument that if a breach of s.424A of the Act was shown then, as a result of the decision in SAAP vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, the decision of the Tribunal must be set aside. However his Honour stated, and I agree, that such a submission could not be accepted.

4. Relevantly, his Honour found in VBAP that there were four independent bases for the decision of the Tribunal.  There was no challenge to one of those bases.  Challenges to two of the other bases had been rejected.  His Honour stated that SAAP did not stand for the proposition that if there be a breach of s.424A in relation to one ground upon which a decision is made and there existed one or more other grounds upon which the decision was not or could not be impeached, the decision nonetheless falls. SAAP was a case in which the only ground relied upon was a ground on which jurisdictional error was established.  There was therefore no other basis upon which the decision in that case could be upheld.  However in VBAP there were three other bases upon which the decision may be supported. 

5. Similarly in this case it is contended that there is a separate basis, consisting of the Tribunal finding in relation to relocation, entirely independent of any failure to comply with s.424A which warrants the withholding of relief in this matter. I accept the submissions of the respondent in this respect. I have taken into account that the Tribunal's consideration of relocation is on the basis of accepting the applicant's claims in relation to the incidents which he claimed had occurred (compare SZEPQ vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 133). The Tribunal stated that if the April 2003 incident occurred (about which it had doubts) it nonetheless considered the applicant could reasonably be expected to relocate within India. The Tribunal addressed relocation in a manner consistent with the principles established in decisions such as Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 and NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 140 FCR 270. (See in particular Black CJ in Randhawa at 442 to 443 making it clear that the Tribunal must ask whether or not an applicant's fear of persecution is well founded in relation to the country of nationality as a whole not simply the region in which he lived, that to do so it is necessary to assess the claims against the particular part of the country in relation to which they are made and then to go on to proceed to look at the reasonableness of relocation (or what is sometimes called the internal flight alternative) so as to reach a conclusion on the ultimate question for determination.)

6. It is clear that in this case the Tribunal had regard to a number of factors in finding that any risk of harm faced by the applicant because of his religion or a political opinion imputed to him was confined to his home town and then raised with the applicant in the hearing and addressed in its reasons for decision the “range of realities” (as Black CJ described them) to be considered in determining whether it would be reasonable to expect the applicant to relocate.  In so doing it considered not only general factors but also matters specific to the applicant.  It gave consideration to the practical realities facing the applicant as raised in the Tribunal hearing in light of the applicant's responses and as apparent on material before the Tribunal.

7. In that respect it is important to note that the Tribunal reasons for decision which, as I have said, are the only evidence of what occurred in the Tribunal hearing before the Court, indicate that the Tribunal told the applicant that if he was having problems with RSS people in Tamil Nadu it appeared reasonable for him to relocate, that it raised issues of his language, lack of friends elsewhere in India and that the BJP government was in power.  The Tribunal put to the applicant for comment independent country information relevant to the issue of relocation and he conceded that the local Tamil Nadu RSS would be unable to locate him if he moved to another state.  He agreed with the independent country information about the generally amicable relations between various religious groups. 

8. In other words the Tribunal gave consideration in a practical sense to whether the applicant could reasonably be expected to relocate within India. This is not a case in which it is apparent that the Tribunal erred by misconceiving the elements of the test for determining whether or not the applicant was a refugee or misconceived the content of the requirement that it not be unreasonable for the applicant to relocate within, in this case, India. In these circumstances the finding is independent of the failure to comply with s.424A which arose out of the Tribunal's failure to put in writing to the applicant inconsistencies in his claims which led it to doubt his credibility. It was those accounts which led the Tribunal to doubt whether the April 2003 incident occurred. However it proceeded to consider relocation on the basis that the incident had occurred. In these circumstances, as that there is a finding independent of the failure to comply with s.424A which provides a basis to uphold the validity of the Tribunal decision, I consider that in this case it is appropriate that relief be withheld and the application be dismissed.

9. I note that the respondent seeks that the Refugee Review Tribunal be added as a respondent to the proceedings and consider that this is appropriate. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet her costs in the sum of $5,400.  The applicant claims that he is impecunious and unable to pay.  However that is not a matter that warrants departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the respondent in determining when and how to seek to recover such costs.  I note that on the last occasion the matter was unable to proceed because the interpreter was not available.  I consider in light of the nature of this and other similar matters the appropriate amount of costs is the sum of $5,000.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  1 November 2006

CORRECTIONS

1. Catchwords delete “no jurisdictional error” insert “failure to comply with section 424A of the Migration Act 1958 – relief withheld”

1. Title insert “& Anor” after the word “Immigration”

1. Footer insert “& Anor” after the word “Immigration”