SZCXQ v Minister for Immigration & Anor
[2006] FMCA 1218
•24 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCXQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1218 |
| MIGRATION – Refugee – claims of persecution based on religion – Tribunal found that incidents suffered did not amount to persecution – in any event applicant able to relocate to another part of India if he did have a subjective fear – whether failure to take into account a relevant consideration – whether bias and bad faith – whether failure to consider the applicant’s documentary evidence – illogicality – use of independent country information – no reviewable error – application dismissed. |
| Migration Act 1958, ss.424A(1), 424A(3)(a), 422B, 425, 425A |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 203 Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZCXQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 632 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 August 2006 |
| Date of Last Submission: | 27 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 632 of 2004
| SZCXQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 9 March 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
16 January 2004 and handed down on 11 February 2004 affirming the decision of a delegate of the respondent Minister made on
23 September 2003 to refuse the grant of a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.The applicant is a citizen of India, of Muslim religious background, who entered Australia on 28 July 2003 on a short stay business visa. He made an application for a protection visa, lodged with the first respondent's Department, on 26 August 2003. The application is reproduced in the Court Book (“CB”) in this matter at CB 1 to CB 25, and the applicant’s claims are particularly contained in a supporting statement, with annexures, reproduced at CB 26 to CB 48. The subsequent application to the Tribunal, lodged on 24 October 2003, is reproduced at CB 65 to CB 68. The applicant provided additional material to the Tribunal copied at CB 74 to CB 87, and gave oral evidence at a hearing the Tribunal conducted with him on 12 January 2004. The Tribunal’s account of the hearing reveals that the applicant's migration adviser also made submissions to the Tribunal at the hearing (CB 107).
The applicant’s claims centre around his assertions that he was a member of an Islamic Student Association (and the Muslim League) in India and that he was attacked by Hindu militants because of his activities on behalf of the Association. Specifically, that he had been physically attacked four times between 1997 and 2003. He further claimed that because he had become a target, Hindu militants would pursue him no matter where else he might go in India.
The Tribunal found that:
1)Even if it was prepared to accept that the applicant had suffered assaults as claimed, that this was not evidence of a pattern of persecution for a Convention reason (CB 113.2).
2)Even if the applicant did have a subjective fear of living in Tamil Nadu (his home state) the Tribunal found that in his particular circumstances it would be appropriate for him to relocate to “some other city in India” (CB 113.4).
3)The applicant's fears that Hindu militants would pursue him were unfounded in light of “his very marginal and localised association with Islamic activities” (CB 113.6).
4)There was not a real chance that the applicant might face persecution for his religion or for any imputed political opinion or for any other Convention reason in light of the above findings (CB 113 .8).
In relation to 1) and 3) above, the Tribunal relied on the applicant's own evidence, and in relation to 2) the applicant's own evidence and independent evidence available to it. [4) above was the conclusion arising out of the earlier findings].
The applicant attended the hearing before the Court and was assisted by an interpreter in the Tamil language. Ms. Henderson appeared for the respondents. I note that the applicant did access the Court’s Legal Advice Scheme and was provided with advice by a lawyer on the panel of that scheme on 27 October 2004. Before the Court the applicant stated that he had explained to both the “Minister's Department” and the Tribunal how he had suffered and been victimised and that as this was not accepted he has appealed to the Court for “a fair go”. He insisted that what he had stated had actually happened, and yet his claims were not accepted. It was clear that the applicant was seeking from the Court impermissible merits review. He was clearly asking that the Court accept his claims entitling him to protection. I explained to the applicant the difference between the role of the Tribunal and the role and powers of the Court. Beyond pressing that it was “dangerous” for him to return to India, the applicant was unable to add anything to the claims set out in his amended application.
By way of amended application filed on 1 February 2005, the applicant put forward one ground of complaint: that the Tribunal decision “shows” that it failed to take into account a relevant consideration. The amended application also contains two pages of particulars. Unfortunately, these particulars do not appear to shed any light on what relevant consideration the Tribunal failed to take into account. Nor was the applicant before me able to assist in this regard.
In any event, on the material before me, I cannot see that the Tribunal has failed to take into account a relevant consideration. It is well established that a Tribunal does not have to uncritically accept everything, or anything, that an applicant puts before it. On the material before me the Tribunal did look at all of the applicant's claims as submitted by him, and his adviser, and dealt with each of those claims [but see also paragraphs 9 to 11 below]. To the extent that the applicant's complaint is that the Tribunal did not accept his claims, then on what is before the Court, the Tribunal made findings which were open to it on the material before it. I cannot see that there is any discernible error on the part of the Tribunal. The Court, of course, does not have the power to consider the merits of the applicant’s claim as before the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The applicant put forward a number of particulars in the amended application (I will assign numbers to the paragraphs for ease of reference).
As referred to above many of the particulars (in whole or in part) seek impermissible merits review. This is particularly seen in page 2 – paragraphs 1 and 2, and page 3 – paragraphs 3 and 4. As I have stated above, the Court clearly has no power to provide this type of merits review to the applicant. As to the remainder:
1)Page 2 – paragraph 1: The applicant asserts that the Tribunal made its decision in bad faith.
A.The applicant’s only assertion in support of this claim is that the Tribunal acted in bad faith because it overlooked his “documentary evidence” which he claims was sufficient to “established his persecution”. The applicant has put nothing before the Court to indicate, let alone establish, any of the relevant elements of bad faith or for that matter bias. For the applicant’s benefit, I should at first note that an allegation of bad faith, or bias, on the part of a Tribunal is an extremely serious matter. An allegation of actual bias (or the apprehension of bias) must be supported by evidence. Such an allegation implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome of the matter.
B.In relation to the test for bad faith on the part of the Tribunal see for example Minister for Immigration and Multicultural and Indigenous Affairs v NAOSof 2002 [2003] FCAFC 142 at [18] to [20]. Such allegations must be clearly alleged, supported by evidence, and demonstrative of personal fault, or an absence of honesty on the part of the decision maker.
C.In particular, allegations of actual bias carry with them the onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. I note in this regard that the applicant would need to present more than just the conclusion reached by the Tribunal to support this claim.
D.The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims or that the Tribunal acted with bad faith. I note that it is rarely the case that such claims can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872).
E.In all, the applicant’s complaint appears to be that the Tribunal acted in bad faith because it “overlooked” his evidence. This complaint is not made out. (See also, in particular, 2) below).
2)Page 2 – paragraphs 1 and 5: The applicant claims that he did have documentary evidence to support his claims, and gave oral evidence, but the Tribunal overlooked this material. I note paragraphs 14, 15 and 16 of the respondent’s written submissions:
“14. The applicant’s documentary material comprised:
• The statement he attached to his protection visa application (CB 26);.
• An article from the World Socialist Web Site (CB 34);
• An Amnesty International press release (CB 39);
• An extract from an Indian newspaper (CB 41);
• Statistical material regarding the Indian population (CB 46);
• His migration agent’s submission to the Tribunal (CB 74); and
• His mother’s death certificate, tendered at the hearing (CB 91).
15. The Tribunal included a comprehensive summary of the contents of the applicant’s statement and his agent’s submission in its Reason for Decision (CB 101-104, CB 104-106). Clearly, that material was considered and was not overlooked. The Tribunal also made reference to the death certificate of the applicant’s mother (CB 106.3).
16.The Tribunal did not discuss the articles and statistical material in it Reasons, but it was not required to do so (Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 203). Contrary to the applicant’s contention, those documents fell well short of establishing that the applicant had been persecuted, and the Tribunal was entitled to find them unpersuasive.”
I agree with these submissions. The Tribunal clearly considered the applicant’s evidence, both documentary and oral.
3)Page 2 – paragraph 3: The applicant also complains that the Tribunal's decision was not based upon reasoning which provided a rational or logical foundation for its “belief”.
A.While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 (“S20”) expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (“NACB”) at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from the earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
B.In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore J. held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. See also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54].
Further, there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.
C.While the applicant clearly is aggrieved by the Tribunal's decision and (understandably) does not want to accept the Tribunal's decision this is not sufficient to establish a want of logic in the Tribunal's reasoning. A plain reading of the Tribunal's decision record reveals that the Tribunal proceeded on the basis that even if it accepted that the specific instances of harm the applicant claimed had occurred, no Convention nexus was established. Further, that the applicant could reasonably relocate to another part of India. It relied on the applicant’s own evidence and independent country information available to it. It made findings which were open to it on what was before it. I cannot discern any irrational or illogical reasoning in its analysis.
4)Page 2 – paragraph 4: The applicant asserts the Tribunal did not observe the Migration Act “properly to making the decision”. No particulars are provided. But as set out above (and with further reference to 6) below) I cannot see that this complaint can be made out.
5)Page 3 – paragraphs 1 and 2: The applicant also complains that the Tribunal did not provide adequate particulars of the independent information on which it relied, and did not provide him with an adequate opportunity to respond to the substance of this information:
A.The independent evidence noted, and relied on, by the Tribunal is set out in its decision record at CB 108.5 to CB 112.7.
B.From its “Findings and Reasons” the Tribunal relied on the “US State Department Report 2002”. In particular the extract reproduced at CB 113.5:
“The degree to which the BJP’s nationalist Hindu agenda was felt throughout the country with respect to religious minorities varied depending on the region. In some states, governments made efforts to reaffirm their commitment to secularism.”
C.This information related to the Tribunal's finding that it is reasonable for the applicant to relocate away from Tamil Nadu. It is clear that the Tribunal did discuss the issue of relocation with the applicant at the hearing that it conducted with him (CB 107.3). The Tribunal specifically reports in its account of the hearing:
“Further, the Tribunal found it hard to believe that if indeed there was a network of Hindu fundamentalists in India, the applicant, who had only engaged in community activities in Chennai, would be of sufficient importance to warrant his being pursued elsewhere in India.” (CB 107.4)
The applicant was clearly given the opportunity to respond (CB 107.5). The substance of the information that the Tribunal derived from the independent country report was that the impact of Hindu fundamentalism throughout India with religious minorities varied depending on the particular region, and that in some states local governments made efforts to reaffirm a commitment to secularism.
D.That the applicant and his adviser understood this issue as it derived from the hearing before the Tribunal can be seen further from the Tribunal's account of what occurred towards the end of the hearing (CB 108.2 to CB 108.5) in particular at CB 108.5:
“The applicant concluded the hearing by stating that his problems arose from Hindus and while there are many Muslims in India, the Hindus want to see India ruled by Hindus.”
E.In any event, the information relied on by the Tribunal was not personal to the applicant, or another person, and the Tribunal was not under any obligation pursuant to s.424A(1) of the Act as such information clearly fell within the exception provided for in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). The application to the Tribunal was made after the introduction of s.422B of the Act. The Tribunal’s obligations therefore, in the circumstances of this case, derive from Division 4, Part 7 of the Act (Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61).
6)Page 3 – paragraphs 5 and 6: the applicant also complains that the decision was made in circumstances where the applicant was denied procedural fairness. He stated that he would provide a transcript of the hearing to show this to the Court. No transcript has been provided to the Court.
From the Tribunal's account of what occurred at the hearing it is clear that the applicant, who was assisted and accompanied by his migration agent at the hearing conducted by the Tribunal, was given the opportunity to present arguments in support of his claims. On a fair, and plain, reading of the Tribunal's decision record, in particular in regard to what occurred at the hearing (CB 106.3 to CB 108.5), both the applicant and the adviser were apprised of the Tribunal's concerns, and given the opportunity to comment. The applicant before me was not able to say what matters were not put to him for comment, or where the Tribunal's decision reveals some failure of this type.
7)Page 3 – paragraph 3: the applicant claims that the Tribunal made a finding, derived from relevant country information, that the Muslim minority are not persecuted in India.
I cannot see that the Tribunal made any such finding. The information in this regard on which the Tribunal relied was that the situation in relation to the nationalist Hindu agenda in India varied depending on the region. This complaint is not made out.
8)Page 3 – paragraph 7: The applicant asserts that he will provide more details to support the “judicial review application”. Despite opportunity (at the first Court date at which the applicant attended and was assisted by an interpreter in the Tamil language, an order was made that the applicant file and serve written submissions) in the year and a half available to him, the applicant has not filed anything further to the amended application.
Given that the Court had before it an unrepresented applicant, I did consider, and raise, with Ms. Henderson whether the Tribunal adequately dealt with the totality of the applicant's claims. At CB 113.2, the Tribunal’s finding was directed to the four specific instances of assaults that the applicant claimed. The Tribunal found that this was not evidence of a pattern of persecution for a Convention reason. The Tribunal then proceeded to deal with the issue of relocation. The issue which I considered was whether the Tribunal was required to deal with a possible claim arising out of the broader circumstances put forward by the applicant, namely being a Muslim living in a volatile situation in Tamil Nadu.
Ms. Henderson's submission was that what the Tribunal did was sufficient to deal with all of the applicant's claims. Clearly, the Tribunal dealt with the specific claims of harm put forward by the applicant and found that these did not provide evidence of a Convention nexus. Ms. Henderson's submission was that in its findings, beginning at CB 113.2, the Tribunal was also saying that the situation in India was not dangerous in that specific way to the applicant and for the reasons that the applicant had claimed. That a plain reading of the Tribunal's decision record is that the Tribunal found that neither the inherent danger of the religious, or the political, situation in India, nor the applicant's own activities which were connected with his religious beliefs, placed him in any Convention related danger. Further, that the situations of specific harm that he had suffered was as a result of criminal activities. She submitted that this was sufficient to dispose of the question of whether there was an objective basis for the applicant's fear. That this is reinforced in the paragraph beginning at CB 113.4 where the Tribunal addresses the issue by stating that “notwithstanding its findings above”, if the applicant had a “subjective fear” of living in Tamil Nadu, then it was appropriate for him to relocate to some other city of India.
I agree with Ms Henderson's submission. Scrutiny of the applicant's claims as set out in documents before the Tribunal, and as put to the Tribunal at the hearing that it conducted with the applicant, reveals that while his fear derives from essentially religious animosity and violence in India (specifically between extremist Hindus and Muslims) that the objective basis for the applicant's fear of harm was embodied in the events leading up to, surrounding, and the aftermath of each of the four instances of physical harm that he said he had suffered. In the context of how the applicant presented his claims to the Tribunal, Ms. Henderson's submission that the Tribunal disposed of the applicant's objective basis for his fear is in my view correct.
In any event, the Tribunal’s finding on relocation stands as a separate basis for the Tribunal's decision. In this regard see North J. in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and Allsop J. in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [231] to [233]. The Tribunal clearly discussed the issue of relocation with the applicant. On what had been presented, it was open to the Tribunal to find that notwithstanding the applicant's difficulties (his “very marginal and localised association with Islamic activities” – CB 113.7), and with reference to other relevant personal information provided by the applicant, and in the context of other independent country information available) it was open to the Tribunal to find that the applicant could relocate to another city in India. Further, that this was reasonable in the particular circumstances of his case. I cannot see that the Tribunal's approach was inconsistent with what is set out in the leading authority in this area (Randhawa v Minister for Immigration& Local Government & Ethnic Affairs (1994) 52 FCR 437).
On what is before me, the applicant had every opportunity to put forward his claims. He attended a hearing before the Tribunal and was assisted by a migration adviser throughout the review. The Tribunal did not accept that the applicant's specific claims of harm provided evidence of a pattern of persecution for Convention reasons. Further, and in any event, that the applicant was able to relocate to another part of India. These findings were open to the Tribunal on the material before it. I can see no jurisdictional error in what the Tribunal has done. This application is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 24 August 2006
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