SZDZY v Minister for Immigration
[2005] FMCA 1342
•15 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1342 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in India on the basis of his political opinion and race. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 |
| Applicant: | SZDZY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2229 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 August 2005 |
| Date of Last Submission: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Mr Zarucki, Clayton Utz |
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.
That the applications before this Court be dismissed.
That the Applicant pay the Respondent’s costs in an amount of $4800.00.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2229 of 2004
| SZDZY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) 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 was born in Murtzapur Kurukshetr India on 10 February 1980.
The Applicant was born as an Indian citizen and claims to remain as an Indian citizen.
The Applicant claims to belong to a Punjabi ethnic group and is a Sikh.
The Applicant claims that he legally departed from New Delhi on 15 January 2004.
The Applicant arrived in Australia on 17 January 2004.
On 29 January 2004, 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 Migration Act 1958 (Cth) (“the Act”).
The Applicant claimed that he feared for his life on the grounds of politics and race if he were to return to India.
On 4 March 2004, the delegate refused to grant a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 25 March 2004, the Applicant filed an application for review before the Tribunal. On 23 June 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 15 July 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
On 19 December 2004, pursuant to Short Minutes of Orders made on 19 October 2004, the Applicant filed an amended application (“the Amended Application”).
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.
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.
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 Applicant’s claims
The Applicant made the following claims in a statement in support of his application for a protection visa:
a)That he belonged to a political party named Haryana Vikas Party (“HVP”) and was involved in youth work.
b)That he worked against Congress and the INLO parties.
c)That he was arrested by security forces and locked up for a number of days shortly before coming to Australia. He was not charged but he was beaten and told to stop his political work for the HVP. That the security forces took him to a remote area and “persecuted” him for a number of days using electric shock, tying his hands on a post over his head and trying to drown him in “a big gallon of water”.
d)That police and security forces work together in India and are told by political leaders to arrest people like the Applicant.
e)That he is targeted also by the Muslims who live in the next village because he would “try and get Muslim boys to think like me”. That Muslim people came out at night and attacked the Applicant and his family.
f)That the police did not listen to the Applicant’s complaints.
g)That, in October 2003, the political opponents beat up the Applicant and took him away for 3 days in remote jungle about 8kms from his home. They did “a lot of bad things” to the Applicant and showed him a knife. They told him they would kill his family and that they wanted to teach him a lesson “because they hate me”. The Applicant states that he was told that they will “kill people like me”.
h)That he had to go to hospital for treatment after this episode for two days.
i)That he fears for his life because of politics and race. That his family is afraid he will be killed because of “the men who hate me and because of the Muslims people who not like the Indian people”.
The Tribunal proceeding
The Applicant attended a hearing before the Tribunal on 31 May 2004 and gave oral evidence.
The Tribunal accepted that the Applicant was connected with the HVP and had some knowledge, although his account of the party’s policies was “rather limited”.
The Tribunal noted that it was possible that the Applicant suffered some harassment from supporters of other parties. However, the Tribunal did not accept that the Applicant was targeted by the security forces because of his political opinion.
The Tribunal observed that the Applicant was unable to identify the people who he claimed took him to the jungle other than to state that they were Congress supporters.
The Tribunal noted that the Applicant did not claim, at the hearing before it, to be detained by the authorities.
The Tribunal accepted that it is possible that the Applicant was abducted as he claimed and that his family were harassed by neighbouring Muslims. However, because of the limited account given by the Applicant both to the Department and to the Tribunal at the hearing, the Tribunal was not satisfied that his abduction and harassment amounted to persecution in the Convention sense.
The Tribunal noted that the Applicant was able to readily obtain a new passport and stated that they inferred that, if the Applicant was wanted by the authorities that he would have been reluctant to apply for his passport.
The Tribunal had regard to independent country information and, particularly, the US State Department Reports on Human Rights Practices 2003 that stated that “the government generally respected the human rights of citizens” and “the constitution prohibits arbitrary arrest and detention”. The Tribunal noted that there was no evidence before it that would suggest that the Applicant could not avail himself of the protection of the State.
The Tribunal then considered that, if it was wrong in that observation, that in any event, it would be reasonable to expect that relocation to another part of India is an option for the Applicant. The Tribunal noted that the Applicant speaks several languages and that he is a Sikh which has well established and peaceful communities throughout India and is also the religion of the new Prime Minister. The Tribunal also noted that he had 12 years of education. The Tribunal had regard to the independent country information in being satisfied that Indian citizens have freedom to relocate from one area of India to another with two exceptions, Jammu and Kashmir.
The Tribunal concluded that it was not satisfied that the Applicant is a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this Court
The Applicant was unrepresented before this Court although he had the assistance of an interpreter.
The Applicant relied on the statutory declaration annexed to an Amended Application filed on 19 December 2004 as the grounds for his application before this Court and claimed relief on the following grounds:
“1. The Tribunal member has failed to justify the information given by me in the hearing.
When asked about the President of Haryana Vikas Party, I replied it was Mr. Bansi Lal.
The Tribunal in its interpretation did not accept my reply and mentioned in his decision, Asked who the party leader at state level was he answered Bansi Lal who according to the official government website,
accessed on 31 May 2004 was an MLA in that State”.
The Tribunal failed to realize that the Haryana Vikas Party President was Mr. Bansi Lal even though he was an MLA of Haryana state.
2. The Tribunal member has also misinterpreted the information provided by the applicant that the party symbol of the HVP is an Elephant, where as I told the member that the party sign was a pair of children.
The Tribunal member has suggested that, “Indian citizens have the freedom to relocate from one area in India to another with two exceptions…………..”
There is no doubt that the Indian citizens can move in any State without any permit even in Jammu & Kashmir however the Tribunal failed to realize that any activists if they wasn’t to continue their political work shall be segregated from the common persons and shall be persecuted by the community as well as by the authorities.
The States in India have been divided on language basis. A person from one state is immediately segregated from the locals because of his language and culture. It is not possible to get mixed in the local population.
The Tribunal member has failed to understand the cultural complexities of the area.
4. Over all the Tribunal has distorted the information provided by me and have prematurely suggested some solutions which are not possible.
I would request that justice should be done with me and I should be given protection.”
I understand the Applicant to make four claims in respect of his Application before this Court:
a)That the Tribunal member failed to justify information given by the Applicant at the hearing in that it failed to realise that the HVP President was Mr Bansi Lal, even though he was a MLA of Haryana state.
b)That the Tribunal member misinterpreted information provided by the Applicant that the party symbol of the HVP is an elephant, whereas the Applicant told the member that the party sign was a pair of children.
c)That the Tribunal failed to realise that any activists, if they want to continue their political work, will be segregated from common persons and will be persecuted by the community, as well as the authorities, and that the Tribunal failed to understand the cultural complexities in India in finding that relocation was a reasonable option for the Applicant.
d)Overall the Tribunal had distorted the information provided by the Applicant and prematurely suggested some solutions which are not possible.
Ground (a): That the Tribunal member failed to justify information given by the Applicant at the hearing in that it failed to realise that the HVP President was Mr Bansi Lal, even though he was a MLA of Haryana State
The Applicant did not have a copy of the transcript in support of his Application. However, the Respondent read an Affidavit, sworn
25 August 2005 by Caitlin Marie Chittenden, annexing a copy of the transcript. I accept that the transcription is accurate. It is common ground between the parties that the relevant part of the transcript is as follows:
“Tribunal Member: Who was the leader at the time when you joined?
Applicant: Do you mean the HVP Party?
Tribunal Member: Yeah. The leader of the HVP Party.
Applicant: There was ??
Tribunal Member: Was he the leader of the party in your state or your district?
Applicant: He was leader of our district.
Tribunal Member: Do you know who the leader in the state was? The leader of the whole party?
Applicant: Bansi Lal
Tribunal Member: Sorry?
Applicant: Bansi Lal”
The Applicant complained that the Tribunal did not accept his reply that Bansi Lal was the state leader of the whole party and that the Tribunal sought to rely on information obtained from a website that it found to be the official Haryana government website.
The information on the website, as accessed on 31 May 2004, disclosed that Bansi Lal was an MLA in the state and not the leader. The Applicant stated that he was in fact the leader of the HVP. The information was identified by the Tribunal as “the official Haryana government website”.
The question of the accuracy of independent country information is one for the Tribunal and not for the Court. It is not jurisdictional error for the Tribunal to base a decision on independent country information that is not true. The question of the accuracy of the independent country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the accuracy of the independent country information it would be engaging in merits review. The Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at 11).
The Tribunal was satisfied that the information obtained by it from the website was the “official Haryana website” and, accordingly, regarded it as independent country information.
There was no evidence provided by the Applicant, other than his assertion, either before the Tribunal or before this Court, that Bansi Lal is the leader of the HVP in the state of Haryana.
Moreover, the Tribunal accepted that the Applicant was connected with the HVP and had some knowledge of the party, although his account of the party’s policies was rather limited. The Tribunal appears to have based that finding on questions and answers in the transcript relating to the party platform, what the party stood for and special beliefs of the party that made it different.
The Tribunal did not refer to the answer by the Applicant identifying Bansi Lal as the leader of the whole party as a matter that was relevant to its finding that the Applicant’s account of the party’s policy was rather limited. There is nothing to suggest that the Tribunal regarded the Applicant’s inability to name the leader of the party as being related to the Tribunal’s finding that the Applicant had limited knowledge of the party’s policies. The Tribunal made no other comment about the Applicant’s answer that Bansi Lal was the leader of his party.
In any event this ground relates to findings of fact by the Tribunal. Those findings were open to the Tribunal on the material before it and, accordingly, this Court has no jurisdiction to interfere.
Accordingly, this ground is rejected.
Ground (b): That the Tribunal member misinterpreted information provided by the Applicant that the party symbol of the HVP is an elephant, whereas the Applicant told the member that the party sign was a pair of children
In the transcript, the relevant passage is as follows:
“Tribunal Member: Can you tell me what the symbol of the HVP Party is?
Applicant: Do you want to ?? the symbol of the HVP?
Tribunal Member: Yes, so when you’re voting and you see on the ballot paper a number of symbols each party has a symbol. What is the symbol of the HVP Party?
Applicant: I don’t remember exactly what it looks like, it was an elephant.”
As stated above, I accept the accuracy of the transcript that is attached to the Affidavit of Caitlin Marie Chittenden sworn 24 August 2005. The Applicant agreed that the passage quoted above is the only passage in which the symbol was discussed. The Applicant conceded that, in fact, it does not disclose that he told the Tribunal that the party sign was a pair of children.
Accordingly, this ground is rejected.
Ground (c): That the Tribunal failed to realise that any activists if they want to continue their political work will be segregated from common persons and will be persecuted by the Community as well as the authorities and that the Tribunal failed to understand the cultural complexities in India in finding that relocation was a reasonable option for the Applicant
In considering whether relocation is an option for the Applicant the Tribunal is obliged to consider whether it is reasonable and practical to expect the Applicant to relocate (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265). The Tribunal considered the language skills, and education of the Applicant. The Tribunal also had regard to his religion, being a Sikh, and its well established and peaceful communities through India and that it was the religion of the new Prime Minister. The Tribunal also had regard to the independent country information that confirmed that Indian citizens have freedom to relocate from one area of India to another except for Jammu and Kashmir.
Accordingly, I am satisfied that the Tribunal considered the question of relocation, asked itself the correct question about the practical reasonableness of relocation for the Applicant in particular and concluded, on the material before it, that relocation was an option open to the Applicant. That is a finding of fact. It was open to the Tribunal on the material before it. Accordingly this Court has no jurisdiction to interfere and this ground is rejected.
Ground (d): Overall the Tribunal had distorted the information provided by the Applicant and prematurely suggested some solutions which are not possible
No particulars were provided by this claim and accordingly it discloses no reviewable error. The claim is rejected.
Change of hearing date
The Applicant, at the conclusion of the hearing, before this Court, stated that he was not prepared for the hearing due to the late notice provided to him of the change in the hearing date from 6 September 2005 to 31 August 2005. The Applicant stated that he had only received the letter from the Court notifying him of the change 1 week before the hearing. The Applicant was shown the correspondence, dated 8 July 2005, notifying him of the change sent to the address for service filed by him.
In the circumstances, even if the Applicant had not received the notice of change of hearing date until last week, pursuant to directions made, he was required to file and serve any written submissions by 23 August 2005. The Applicant has not filed any written submissions or other material in respect of the matter.
Accordingly, I find that there was sufficient time for the Applicant to prepare for the hearing and that no injustice was visited upon him by reason of the hearing before this Court being brought forward 6 days.
Conclusion
The Tribunal decision is not affected by jurisdictional error. Accordingly, it is a privative clause decision and, pursuant to s.474A of the Act, this Court has no jurisdiction to interfere.
The applications filed in the Court are dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 12 September 2005
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