SZEFT v Minister for Immigration
[2005] FMCA 456
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFT & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 456 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – refusal of leave to file further amended application – drawing conclusions with no evidence – Wednesbury unreasonableness – procedural fairness – no error of law – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 430 |
| Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Randhawa v Minister for Immigration, Local Government & Indigenous Affairs (1994) 52 FCR 437 |
| Applicants: | SZEFT & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2599 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 16 March 2005 |
| Date of Last Submission: | 16 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2005 |
REPRESENTATION
| Advocate for the Applicants: | In person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicants pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2599 of 2004
| SZEFT & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 1 July 2004 and handed down on
27 July 2004.
There are two applicants in this matter. They are husband and wife. The wife’s claims before the Department and the Tribunal depend upon those of her husband. Specifically she relied on her membership of the family unit. For convenience I will refer to the husband, whose claims are the primary ones in these proceedings, as “the applicant”.
The applicant and his wife are citizens of India. He arrived in Australia on 3 March 2004 and on 31 March 2004 he applied for a protection visa. A delegate of the Minister refused that application on 6 April 2004, and notified the applicant of that decision by registered post on 7 April 2004. The notification was sent to the applicant’s home address, his post office address and to the address of his authorised agent.
Clearly that decision was received by the applicant because on 7 May 2004 he submitted an application to the Tribunal. Furthermore, he attended and gave oral evidence before the Tribunal on 25 June 2004. As I have indicated, on 1 July 2004 the Tribunal affirmed the decision of the Minister’s delegate and it was handed down on 27 July 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and the Tribunal appear to be centred upon the Convention grounds of persecution on the basis of political opinion or religion. The applicant is a resident of Mumbai and is trained as an automotive mechanic and a panel beater. He has owned a garage in Mumbai since the early 1980s.
On 5 June 2003 he had a car in his garage ready for delivery to a customer the next day. The car disappeared from the garage overnight, and he assumed it had been delivered. However, the next night the car was parked in front of the garage. The customer arrived with the police, who questioned the applicant and his employees. The applicant was then arrested.
He was told by the police that the car had been used the previous night to deliver explosive ammunition. He told the police he was innocent, but he claims he was tortured for two days for information about the crime. His employees were also tortured, including a Muslim, Mr Imitaz Ahmed. The applicant was released without being charged. He claims that this was the beginning of his difficulties.
The police subsequently believed the applicant was involved in anti-national forces. Certain terrorists groups believed he was reporting Muslims to the police, and the dominant Hindu party, Shiv Sena, believed he was colluding with Muslims for money. Therefore whenever there was a terrorist activity or a Hindu-Muslim clash, he was targeted by all parties.
On 25 January 2004, some time after the incident when the applicant was arrested, his employee, Mr Ahmed, was arrested by police. He died in custody three days later. The next day the applicant received a phone call which threatened his life, to avenge Mr Ahmed’s death. The applicant could not receive protection, and could not work. He obtained an Australian visa with great difficulty and came to Australia. He fears being killed by Muslims, Hindu fundamentalists and state intelligence.
In addition the applicant gave oral evidence before the Tribunal which raised a number of new claims. The most significant was that some time between 10 and 15 February 2004 a group of Muslims went to the garage and asked him to test-drive their van for mechanical problems. They then beat him and left him in a ditch. He claims that the assault was as a result of his Muslim employee’s death. He further claims that he was advised by a police officer, who he knew, not to report the incident because there was already a perception that he was a terrorist.
When asked why he did not include this in his original application for a protection visa he said that his first adviser had told him not to, but to raise it at the Tribunal hearing instead.
Tribunal consideration
The consideration by the Tribunal and its reasons for decision are accurately summarised in the respondent’s submissions:
3. The Tribunal set out the applicant’s written claims at RD[Court Book]88‑9. To the extent that his evidence at the hearing on 25 June 2004 differed from or contradicted his written claims, the Tribunal relied on his oral evidence, and did not draw any adverse inferences from any inconsistencies. The Tribunal essentially accepted that the incidents relied on by the applicant had occurred, but found that they would not give rise to a well founded fear of persecution.
4. The Tribunal accepted that the applicant was detained by police for two days in June 2003 and mistreated while in detention. It concluded, however, that the actions of the police related to the investigation of serious offences (the use of a truck [or rather a car] stolen from the applicant’s business to transport weapons), and did not amount to persecution for a Convention reason. The Tribunal noted that the police had no further interest in the applicant since his release from detention, and that the applicant did not claim any further adverse encounters with the police following his release. His legal departure from India was also relied on by the Tribunal in finding that the authorities had no further interest in the applicant.
5. The Tribunal also accepted that the applicant was assaulted by six or seven men in February 2004, but did not accept the applicant’s evidence that the perpetrators were Muslims nor that the reason for the assaults were for a Convention reason. The Tribunal further noted that if Shiv Sena wished to harm the applicant they had ample opportunity to do so before the applicant’s departure.
6. In any event, the Tribunal found the applicant’s explanation of why he did not report the incident to the police unsatisfactory, and concluded he had not taken reasonable steps to avail himself of State protection. The Tribunal also said that it was open to the applicant to relocate within India.
Consideration
Further amended application
At the hearing before me the applicant sought leave to file a further amended application. This relied on the allegation that the delegate had failed to notify the applicant according to law. For reasons that I gave at the hearing, this application was futile, manifestly hopeless and bound to fail. I therefore refused leave for the filing of that further amended application.
The applicant also asked that I consider the grounds in the amended application filed on 1 November 2004. However he made no further submissions in support of that amended application, apart from a few comments which essentially cavilled with the merits of the facts found by the Tribunal. Both he and the second applicant essentially threw themselves on the mercy of the Court.
I made it clear to the applicant that the Court’s role was a restricted one. By law the Court can only consider whether the Tribunal has made any legal error.
The amended application before the Court contained five grounds for review. I will deal with each one in turn.
Drawing conclusions with no evidence
The first ground alleges
The Tribunal made Jurisdictional Error by drawing the following conclusions where there is no evidence and thus questioning the credibility of the Applicant.
The particulars for the ground are:
“It is clear that the applicant’s fears are highly localized and confined to his locality in Mumbai. Indian citizens enjoy freedom of movement within the country and generally speaking there would be no problems for Muslims relocating within India.”
In fact this is a quote from the Tribunal’s decision at page 100 of the Court Book. The applicant comments in his amended application:
The Tribunal’s decision that there is no problem for Muslims relocating within India is highly vague and unclear because of the continuous frictions and fighting between Hindus and Muslims all the time in India. Hence it is wrong on the part of the Tribunal to come to [a] vague conclusion of this nature which point-blankly rejects the applicant’s genuine fears in relocation.
This ground must be rejected for the reasons given by the respondent in her outline of submissions. First, there was clear evidence before the Tribunal to support the finding that the applicant disputes. This evidence is referred to at Court Book pages 95 and 96. Secondly, the Tribunal’s finding on relocation is only a “subsidiary finding”. The Tribunal had already made findings of fact that the incidents relied on by the applicant (related to his concerns at being targeted by Muslims, the Shiv Sena Hindus, and the state police) could not give rise to a well-founded fear of persecution. Thirdly, the Tribunal found that adequate and effective state protection was available to the applicant.
Wednesbury unreasonableness
Ground 2 alleges Wednesbury unreasonableness (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223):
the Tribunal was Wednesbury unreasonable in holding that the applicant was not able to provide certain information thus holding against him:
The particulars of this are:
“Even if the applicant has a well-founded fear of persecution in their 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 applicant’s comments are:
The Tribunal’s finding is wrong, because the Tribunal did not address its mind first to ascertain whether it was unreasonable for the applicant to relocate lock, stock and barrel considering his established business, property, machinery, vehicles and the house of living which cannot be removed within a day or two or for that matter even within a couple of weeks. Denying this benefit to [the] applicant was wrong by the Tribunal.
The quote from the Tribunal’s decision to which the applicant refers is not a finding against him, but rather sets out a principle of law. In this quote, the Tribunal correctly relies on the decision of Black CJ in Randhawa v Minister for Immigration, Local Government & Indigenous Affairs (1994) 52 FCR 437.
If the applicant is asserting that the Tribunal did not consider whether it was reasonable for him to relocate considering his business and property interests, I again note that relocation was only a secondary or a subsidiary finding.
Nevertheless, the Tribunal did not fail to deal with this ground, as its decision at Court Book page 100 makes clear. It gave reasons why it did not regard it as unreasonable for the applicant to relocate internally within India, and had regard to his business and property interests. This second ground must be rejected.
Procedural fairness
Ground 3 alleges:
The Tribunal was ‘procedurally unfair’ and failed to comply with section 424A of the Migration Act 1958 and in so doing made a serious jurisdictional error
The applicant then quotes from a part of the Tribunal’s reasons:
The Tribunal does not accept that the Police were after him or had any genuine interest in the applicant before he departed India. The Tribunal is reinforced in this view by the applicant’s ability to depart India legally using his passport.
The applicant submits that the
Tribunal should not heavily rely on the fact that all refugee applicants leaving their own countries and coming to Australia must always have left under disguise or on forged passports to shield their proper identity. [A] [f]inding of this nature is highly unreasonable and not fair by the applicant.
It is unclear what the applicant is alleging here. The applicant appears to be alleging that the Tribunal should have disclosed information to the applicant, and did not do so as required by s.424A. However, any country information relied upon falls within the exception set out in
s.424A(3)(a):
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member
As the respondent has submitted, the substance of the information in the documents before the Tribunal was put to the applicant at the hearing (see eg Court Book page 91). It appears that this ground, like a number of the others which the applicant has alleged, is really cavilling with the merits of the Tribunal’s fact finding, something with which this Court has no power to interfere.
Subsections 430(1)(c) and (d)
Ground 4 asserts:
The Tribunal made further Jurisdictional Error by breaching s430(1)(c) & s430(1)(d) in The Migration Act 1958 in relation to its conclusions
Then the applicant quotes from page 97 of the Court Book (although it is cited as page 74):
The Tribunal is satisfied that the actions of the Indian Police in this case were appropriate and adapted to achieving some legitimate object of the country, namely to protect the general welfare of the country.
The applicant submits:
I am certain this conclusion has no substance to the decision made by the Delegate whose decision was under review by the Tribunal. Hence comments of this nature shows that the Tribunal had made a jurisdictional error contrary to the Act.
It is unclear how the applicant asserts that this finding breaches subparas 430(1)(c) and (d). Those paragraphs relate to material that must be set out in the Tribunal’s written statement of decision. I have not been directed to anything which suggests that the Tribunal erred in its application of s.430 in this respect.
The Tribunal has set out its findings on material questions of fact and referred to the evidence or other material upon which the findings were based. As has been made clear by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, a Tribunal is obliged to set out its findings on the questions of fact which it considered to be material to the decision that it had made and to the reasons upon which it had reached its decision.
Whether the actions of the police were appropriate and adapted to achieving some legitimate object of the country was material to the Tribunal’s decision. This proposition is clear from the judgment of McHugh J in Applicant A& Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4. In determining whether a law or policy results in discriminatory treatment, and therefore amounts to persecution, McHugh J said that
Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.
The question of whether discriminatory treatment of persons of a particular race, religion, nationality, or political persuasion, or who are members of particular social groups, constitutes persecution ultimately depends on whether the treatment is “appropriate and adapted to achieving some legitimate object” within the applicant’s state.
Therefore, in the circumstances before the Tribunal, where the question arose whether or not the action of the police was discriminatory in the sense understood in refugee law and, therefore, might amount to persecution, it was material and relevant to consider whether the treatment was appropriate and adapted to achieving a legitimate object of India.
The Tribunal, having correctly stated the law, and considered the facts before it, was entitled to reach the conclusion that it did. Ground 4 must be rejected.
Procedural unreasonableness in making conclusions
Ground 5 provides that the Tribunal was procedurally unreasonable in drawing the following conclusion against the applicant:
The tribunal is satisfied that if the applicant were to face harm from private individuals, adequate and effective protection is available to him. There was nothing in the independent evidence to satisfy that the Police in Maharashtra do not act against complaints by Hindus or are unable to control acts of violence committed by Muslims.
The applicant submits that:
This is a highly ill conceived opinion made by the Tribunal. It appears that purely on this finding alone, the applicant’s application for refugee status is rejected.
As the respondent has submitted, the Tribunal is entitled to come to the conclusion that there is effective state protection on the material before it. Justice Dowsett in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 pointed out:
One may draw inferences from the absence of reports if there is reason to expect that such reports would, in the usual course, exist.
Further given the level of detail of the independent information, including the fact that the evidence did not suggest that there were any problems faced by Hindus in accessing police protection, the finding that there was state protection was open to the Tribunal.
In my view this ground, as with a number of the others, just shows that the applicant’s real dispute is with the Tribunal’s findings of fact. The applicant is essentially asking this Court to engage in merit review, something that is not open to it. This ground must also be rejected.
Conclusions
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent that the Tribunal reached the view that on all bases the applicant did not have a well-founded fear of persecution if he were to return to India. The Tribunal found that the incidents to which the applicant had referred did not amount to persecution as understood under refugee law. The treatment he had suffered was not for a Convention reason. There was effective protection available to the applicant in India, and even if he maintained that he had fear in his region, it would be reasonable for him to relocate to a different part of India.
These findings were reasonably open to the Tribunal on the material before it. It is clear to me that the applicant’s dispute is not with any legal error made by the Tribunal, but rather with the factual findings the Tribunal made.
On a close examination of the Tribunal’s decision, I am satisfied that it made no legal error going to jurisdiction in coming to that decision.
I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act, and to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 15 April 2005
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