SZDJF v Minister for Immigration

Case •

[2006] FMCA 546

•

11 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJF & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 546
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant protection visas – applicants are citizens of India claiming fear of persecution for reason of religion – applicants are Muslims – persecution for reason of political opinion – credibility – relocation.

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

Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

First Applicant: SZDJF
Second Applicant: SZDJG
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 1154 of 2004
Delivered on: 11 April 2006
Delivered at: Sydney
Hearing date: 11 April 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicants: In Person
Counsel for the Respondent: Mr Smith
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Refugee Review Tribunal is joined as Second Respondent to the Application.

  3. The Application is dismissed.

  4. The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

  5. I allow twelve (12) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1154 of 2004

SZDJF

First Applicant

SZDJG

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 23rd March 2004.

  2. The Tribunal handed down its decision on 15th April 2004. 

  3. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant protection visas to the Applicants. 

Background

  1. The Applicants are citizens of India. They are husband and wife. They arrived in Australia on 14th September 2003 and applied for protection (Class XA) visas on 10th October. When their applications were refused they sought review by the Refugee Review Tribunal. 

  2. The Applicants gave evidence at a hearing of the Tribunal on 4th March 2004. The First Applicant, the husband, has made specific claims under the Refugees Convention, whilst his wife relies on her membership of her husband’s family. Her husband is a Muslim and was an active member of the Samajwadi Party, a party with strong Muslim connections in India. The husband’s father had contested the Mumbai Municipal elections in 1994 and the husband had worked hard in his father’s campaign. Although his father was ultimately unsuccessful, the Applicant and his father became the targets of the Hindu extremists Shiv Sena party. 

  3. The Applicant claimed to have been attacked, including being shot at.  He told the Tribunal that he could not relocate within India because the Shiv Sena had a strong network throughout India. 

  4. The Tribunal considered a significant amount of Independent Country Information. The Tribunal in its findings and reasons accepted that the Applicants were nationals of India and that the Applicant husband had been assaulted and injured by knife wounds in the 1992 riots in Mumbai. 

  5. The Tribunal also considered the situation in 1995 where the Applicant had ventured into a Hindu area under the assumption it was safe to do so. This turned out to be a mistake and their assailants chased them and ultimately assaulted them. The Tribunal Member said at p.120 of the Court Book:

    The applicant and his friends have clearly found themselves at the wrong place at the wrong time. 

  6. The Applicant remained in India for another four months. The Tribunal said he did so without suffering any difficulties.

  7. The Tribunal did not accept that the phone threats against the Applicant had continued well beyond 1995 and until shortly prior to his departure for Australia in September 2003. Whilst the Tribunal accepted that the Applicant was a supporter of the Samajwadi party and had participated in his father’s unsuccessful election campaign in 1994, the Tribunal held that his profile was bereft of significance. The Tribunal did not accept that the Applicant’s profile or his activities in 1994 gave rise to a real chance of persecution if he were to return to India and reside in Mumbai in the reasonably foreseeable future.

  8. The Tribunal also considered the Applicant’s claim that he was placed on a hit list compiled by Shiv Sena or other Hindu groups because of his political activities and his Muslim background was farfetched and implausible. The Tribunal also did not accept that the Applicant was shot at in August 2003 for the reasons that he had provided. The Tribunal went on to find at p.122 of the Court Book that if the Applicant did fear harm by Shiv Sena, Hindu extremists or political opponents, that he was able to avail himself of state protection. The Tribunal found no evidence that the police in Maharashtra do not act against complaints by the Muslims or that they are biased against the Muslims. 

  9. The Tribunal went on also to find that it was satisfied, at pp.122 and 123 of the Court Book, that it was reasonable for the Applicant to relocate to a different part of India to avoid the harm he fears. The Tribunal pointed out that even if an applicant has a well-founded fear of persecution in the Applicant’s home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The Tribunal referred to the well-known decision of Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at [440]-[441].

  10. The Tribunal found that the Applicant’s fears were highly localised and confined to Mumbai. The Tribunal noted that the Applicant was young, highly educated and well travelled and speaks Hindi, English and Urdu. The Tribunal noted that the Applicant was clearly able to adapt to new environments given his ability to settle in the United Arab Emirates, the United States of America and most recently in Australia.  The Tribunal noted that the Applicant had said at the hearing that it would be difficult for him to be in India and not be able to visit his family. The Tribunal did not accept that this would make it unreasonable for him to relocate internally.

  11. Overall, the Tribunal was satisfied that the Applicant’s fear of persecution in India for the reasons of his political opinion, religion or any other Convention reason was not well-founded and affirmed the decision of the delegate not to grant protection visas to the Applicants. 

The application for judicial review

  1. The Applicant sought review of the Tribunal decision in this Court by means of an application filed on 20thb April 2004. That application contains no grounds as such, but the Applicant filed a document on


    25th August 2004 headed “Additional Grounds” and that document contains some 15 grounds setting out why it is that the First Applicant believes that the Tribunal fell into error.

  2. I have also had the opportunity of hearing the First Applicant husband address the Court today. The Applicant whilst provided with the services of an interpreter was able to address the Court in fluent and articulate English and he spoke to his submission.  It was clear from the Applicant’s evidence that he is close to his father and admires him and of course he had supported his father in the municipal elections in 1994.

  3. The Applicant told the Court that he and his wife now have a daughter who is two years and two months of age. She was born in Australia.  The Applicant says that he and his wife are still scared to go back home, that if he were required to leave Australia he believes that he would have to fly to Dubai and seek employment there and said that he could not fly to Mumbai. The Applicant also referred to the relocation question. He conceded that he had worked in Dubai for five years, had pointed out that the situation applied in that country that if he were to lose his employment he would have to leave and return to India. 

  4. Counsel for the Respondent, Mr Smith, provided a Written Outline of Submissions examining the claims of the First Applicant. He also addressed the Court orally and whilst he conceded that the Applicant husband had a strong subjective fear, he pointed out that the Tribunal had looked at whether the Applicant’s subjective fear was well-founded and found in the circumstances that it was not. Counsel for the Respondent also pointed to the relocation issue and the reasonableness of the Applicant, well educated and fluent in several languages, to relocate within India in another part of India.

  5. The Respondent submits that a number of the grounds raised by the Applicant in his document headed “Additional Grounds” are no more than a challenge to the factual conclusions made by the Tribunal and are indeed a form of merits review. The Respondent submits, and I believe correctly, that they do not suggest that the Tribunal committed any jurisdictional error. 

  6. Ground 1 says that the Tribunal failed to see that the Applicant was made a target by Hindu extremists after riots in 1992. That, to my mind, is a challenge to a factual finding. Similarly, ground 3 claimed that the Tribunal failed to see that the Applicant suffered harm and has in the same paragraph concluded that the riots and the violence was spontaneous and started suddenly, submitted that is an error. If it is an error it is a factual error and the Court cannot embark on a merits review. Ground 3 follows on from ground 2. Ground 4 is definitely a challenge to a factual conclusion, as are grounds 7, 8, 9, 10, 11 and 12.  Ground 15 submits that the Tribunal in case of any doubt should have given the benefit of the doubt to the Applicant, that the Tribunal committed error by dismissing all points against the Applicant. If it misses an allegation of error that does not, to my mind, make out a jurisdictional error.

  7. As to ground 5 of the application, Mr Smith, the Respondent, submits that it does not relate to these proceedings. It was not part of the reasons for the Tribunal’s decision that the Applicant had not responded to something.  Ground 5 says:

    The Tribunal says that since no response was received the decision against the applicant was made.  As stated in paragraph 1 above, the response was sent by the agent on various dates, therefore the Tribunal is not correct in dismissing the matter on this ground.

  8. My reading of the Tribunal’s decision does not show that a failure to respond was a ground for dismissal of the application. The Tribunal dismissed the application because it was not satisfied that the Applicant’s fear was well-founded. The Tribunal considered that the Applicant could access state protection in his local area and the Tribunal also considered that it would be reasonable for the Applicant to relocate within India. 

  9. Ground 6 says this:

    The Tribunal is also not correct in dismissing the case on the facts of the matter.  In paragraph 18 the Tribunal states about “Convention” definition.  According to the applicant, the reason for his fear to return to the country is because of involvement with a particular social group or political opinion.

  10. In effect, this is a challenge to a factual finding. The very first sentence makes that clear. As to the claim of being involved with a particular social group or political opinion, the Tribunal was aware of the Applicant’s claim to fear harm because of his particular religion and also because of his political involvement, especially with his father’s campaign.  It was not, however, as counsel for the Respondent submits, express or implicit that there was another claim that the Applicant feared harm by reason of his membership of the particular social group.  Certainly the Second Applicant, the wife, bases her claim on being a member of the husband’s family. I am not satisfied that jurisdictional error has been made out accordingly.

  11. Ground 13 refers to a breach of the rules of natural justice.  I am unable to discern such a breach. The Applicants attended the Tribunal, were given the opportunity to do so and gave evidence. Ground 14 contains an assertion of an error of law, but my reading of the decision does not show any error of law. I am mindful of the fact that the Applicants are not legally represented. 

  12. The Applicant husband is fluent in English and addressed the Court fluently in English and is clearly an intelligent and articulate man.  Nevertheless, he is not a lawyer and I have read through the decision myself in order to ascertain whether any other jurisdictional error may appear that perhaps did not occur to the Applicants or either of them.  I am unable to discern any.

  13. It is certainly apparent that the Applicant husband has a strong subjective fear. He has raised concerns about an uncertain situation if he were to return to Dubai and work there and he clearly has a desire for permanent residence. He is married to the Second Applicant and they have a young child who is two years of age. It is hardly surprising that the two of them wish to have a secure and settled environment in which to raise their child.  

  14. The Tribunal, to my mind, considered that the Applicants had a subjective fear. My own observation of the Applicant confirms this to be the case. The Tribunal, which is the arbiter of the facts, was not satisfied that this fear was well-founded on the basis of the evidence before it. The Tribunal has made a decision about the availability of state protection in India and a factual finding is the province of the Tribunal and not the Court, so long as there is evidence to support it, and in my view there is. 

  15. More strongly, the Tribunal was satisfied for the reasons that it gave that it would be both possible and reasonable for them to relocate within India, taking the view that the matters which the Applicants fear appear to be localised and confined to Mumbai or the Mumbai area.  The Applicants do not agree, but the unfortunate situation is for the Applicants that it is the Tribunal that makes the factual decisions.  It is not within the jurisdiction of the Court to make its own factual findings on the basis of the evidence to the Tribunal and substitute those for those made by the Tribunal. The Court does not have the jurisdiction to do so and cannot do so. 

  16. Whilst I am satisfied that the Applicant has a strong subjective fear, that is as far as that can go and the Applicants will need to look to their rights for review either through appeal to the Full Court of the Federal Court, or, perhaps if that is unsuccessful, may seek to make approach to the Minister under the provisions of s.417 of the Act. Neither of those things are within my control however. Regrettably, as I am satisfied that no jurisdictional error has been established, I must dismiss the application. 

  17. I note that when these proceedings were commenced the Refugee Review Tribunal was not mentioned as a Respondent. It is quite clear from the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 that it is the proper course to add the Tribunal as a Respondent, and I propose to join the Refugee Review Tribunal as Second Respondent. I also note that the First Respondent Minister has now changed title to Minister for Immigration and Multicultural Affairs and the record will show that.

  18. The Application will be dismissed. 

  19. There is an application for costs in the sum of $5,000.00 inclusive of counsel’s fees. As the Applicants have been unsuccessful, I am of the view that there should be a costs order.  I am also of the view that the amount of $5,000.00 inclusive of counsel’s fees is an appropriate figure and one which should be ordered. I take into account the fact that the First Applicant was out of work for a period of about four months as a result of a fire at his previous place of employment and has only recently in the last two and a half months returned to work.  Whilst that is not a reason not to make an order for costs, it is certainly a matter that I feel I should take into account in assessing time to pay.

  20. The Second Applicant is not in employment. She is the mother of a little girl aged two years and two months. Quite clearly, with a child below school age her time is heavily taken up being a mother. What I do note about this case is that it has rested entirely on the claims of the First Applicant. That is of course no criticism, far from it. The Second Applicant, the wife, has played no separate role in the proceedings.  Indeed her claim rests on being the wife of the First Applicant. I am satisfied that it would be an appropriate exercise of my discretion not to make an order for costs against her.

  21. I propose to make an order that the First Applicant is to pay the First Respondent’s costs in the sum of $5,000.00. In the circumstances I will allow 12 months to pay. I require a transcript of my reasons for this decision and the application will be removed from the list of cases awaiting finalisation.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  18 April 2006

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Cases Citing This Decision

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SZDJF v Minister for Immigration and Multicultural Affairs [2006] FCA 1132