SZERI v Minister for Immigration

Case •

[2006] FMCA 467

•

14 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 467
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India claiming a fear of persecution because she is a Christian and also for reason of political opinion – relocation – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 430

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

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396

Applicant: SZERI
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3297 of 2004
Delivered on: 14 March 2006
Delivered at: Sydney
Hearing date: 14 March 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Johnson
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. Leave to join the Refugee Review Tribunal as a Respondent.

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

  3. The Application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3297 of 2004

SZERI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 decision was made on 30th September 2004 after a hearing that took place on 21st September 2004. The Refugee Review Tribunal handed down its decision on 26 October that year.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of India who arrived in Australia on 5th April 2004. She applied for a protection (Class XA) visa on 3rd May 2004 but it was refused on 7th May 2004.

  2. On 23rd June the Applicant sought a review of that decision from the Refugee Review Tribunal. She forwarded a Written Submission to the Tribunal on 18th September 2004 claiming to be a member of a particular social group and stating that she had become marginalised from mainstream Indian society because of what she described as her "ethnicity and religiosity".

  3. At the hearing on 21st September the Applicant told the Tribunal that she herself was a Dalit and moved to a small village about 40 kilometres from Bangalore to do “social work” with Dalits.  She said that she undertook Christian missionary work as an individual rather than as a member of a particular church or missionary organisation.  Her activities angered local politicians and in January 2004 a group of Hindu women beat her up because of her missionary work.

  4. The Tribunal Member asked the Applicant if she could avoid harm by living elsewhere in India. The Applicant said that she had moved to several different villages in the area but her enemies still pursued her.  She told the Tribunal that she would not be safe even if she moved to another state in India. She said her enemies would find her anywhere in India because she was famous throughout the country.

The Tribunal’s findings and reasons

  1. In the Tribunal's findings and reasons that appear on pp 129-132 of the Court Book. The Tribunal accepted the Applicant's claim that she suffered harassment in India when she sought to express her religious and political views through missionary work with the Dalits and that she had been denied protection by the local authorities. Nevertheless, the Tribunal formed the view that the Applicant's difficulties were restricted to the part of India where she lived between 1994 and 2004.  The Tribunal was satisfied at p 131 of the Court Book that the Applicant could avoid harm by relocating elsewhere in India and referred to the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

  2. The Tribunal also made the following findings:

    a)whilst the local police failed to protect the Applicant when she sought assistance this was confined to the area where the Applicant lived;

    b)the Tribunal found that the Applicant had not provided any meaningful evidence to support her claim that her activities were well known throughout India and was not satisfied that this was the case;

    c)the Tribunal accepted that communal violence occurs throughout India with some states being more prone to violence than others, but was satisfied that Christians are not commonly targeted by other religious groups;

    d)the Tribunal was satisfied that the Applicant's difficulties in India associated with real or perceived political activities with Dalits were confined to the area where she previously lived and that in other areas of India the applicant's missionary or political work would not attract adverse interest from local political leaders.

  3. In short the Tribunal was not satisfied that the Applicant had a well founded fear of persecution in India for reasons of religion, political opinion or any other convention reason.

  4. The Tribunal affirmed the decision of the Minister's delegate not to protect the Applicant a protection visa.

The application for judicial review

  1. The Applicant commenced proceedings in this Court by filing an application under s.39B of the Judiciary Act 1903 on 9th November 2004. She filed an Amended Application on 7th March 2005. The Amended Application sets out three grounds for review.

  2. The first ground of review is that the Tribunal ask itself the wrong question such that the Tribunal exceeded its jurisdiction. The particulars of that ground are that the Tribunal said at the hearing that the first thing to be considered was whether the Applicant had a well-founded fear of persecution and if so, whether the well-founded fear of persecution was for a Convention reason.  The Applicant submits that in determining whether a person has a real chance of serious harm in the future it is necessary first to characterise that person according to the appropriate Convention criteria. 

  3. The second ground of review cited by the Applicant is that:

    "By failing to consider the applicant's need to act discreetly in her proselytising activities to avoid the threat of serious harm is illustrative of country circumstances amounting to persecution the tribunal asked itself the wrong question such that the tribunal exceeded its jurisdiction." 

  4. The particulars of that ground are that in reaching a conclusion that relocation in India was appropriate the Tribunal Member considered variously that the Applicant had acted discreetly in proselytising activities in the past in India and will in Australia. Furthermore, the Member wrongly considered that joining an organisation of the church would minimise persecution.

  5. The Applicant's third ground is that the Tribunal failed to take account of other relevant considerations such that the Tribunal exceeded its jurisdiction. The particulars of that ground are that in assessing the reasonableness of relocation within India the Tribunal failed to consider the Applicant's evidence that she was separated from her husband. Furthermore, the Applicant submits that in assessing whether or not a well-founded fear of persecution existed, the Tribunal failed to consider the Applicant's evidence that she had effectively abandoned her daughter in India.

  6. Counsel for the Respondent Minister submitted that first the Refugee Review Tribunal should be added as the Respondent to this proceeding by reason of what was said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. I propose to accede to that submission.

  7. He submitted that the Applicant's first ground does not disclose any particular error with reference to the Tribunal's decision. The Tribunal must be satisfied that the criteria for the grant of a protection visa are fulfilled before it can grant the visa and it must refuse the visa if not satisfied.  As the Full Court of the Federal Court explained in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, s.65(1) of the Migration Act does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.

  8. Counsel for the Minister submits that the Applicant's second ground of review is misconceived and that the Tribunal's decision was based on the relocation principle. That is, the availability of effective protection elsewhere in India and the Tribunal's satisfaction that it would be reasonable for the Applicant to relocate to a place where she would be safe. The Tribunal was not requiring the Applicant to behave discreetly.

  9. Counsel for the Minister also submits that the particulars to ground 2 are also misconceived. The Tribunal did not make the findings that the Applicant claims.

  10. As to the third ground, counsel for the Minister notes that the Applicant claims that:

    a)in assessing whether relocation within India was reasonable the Tribunal ought to have considered the Applicant's evidence that she was separated from her husband; and

    b)in assessing whether the Applicant had a well-founded fear of persecution the Tribunal ought to have considered evidence that the Applicant effectively abandoned her daughter in India.

  11. He made the following points in reply to those claims:

    a)the Tribunal did note the Applicant's evidence that she was separated from her husband at p 122 of the Court Book and there was no need to make further reference to that fact;

    b)if the Applicant contended that the fact she is separated from her husband worked against her ability to relocate the Tribunal was not obliged by s.430 of the Migration Act to refer to or deal with any evidence against its findings;

    c)failure to take into account a relevant consideration means failing to take into account a factor or integer, that the legislation requires to be considered rather than mere evidence.  (See Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]).

  12. The Applicant attended the hearing and presented her own case.  She made oral submissions to the effect that at the Refugee Review Tribunal hearing she was cross-questioned by the Tribunal Member.  She claimed that the Tribunal did not take her answers in the right way.  She reiterated her belief that it is not safe for her to return to her country. She said that she had to leave her family and come over to Australia. When asked by the Court to comment on the fact that the decision of the Tribunal related to her ability to relocate within India and the reasonableness of doing so she said that every state was governed by Hindu rule and she had told the Tribunal that it was not safe for her to relocate anywhere in India. She said that she was afraid to go back to India and cannot relocate within India.

  13. She said that her daughter lives with her mother and she has not seen her for two years since she left India for Australia in 2004. She asked rhetorically who would look after her daughter if she, the Applicant, was killed.

  14. In oral submissions Mr Johnson of counsel for the Respondent Minister made the point that the circumstances of the Applicant's daughter were not of course a consideration that the Court can take into account when conducting the judicial review. He said that it was not shown that the Tribunal had failed to consider anything that the Applicant had said but in fact it referred to the decision of the Court in Randhawa who found that the Applicant could relocate.

  15. He pointed out that the Tribunal is in fact a fact finder and that a Tribunal had found that there are other parts of India where the Applicant could live in safety and submitted no jurisdictional error had been demonstrated.

  16. In reply the Applicant said that the case was not a question of her daughter, she reiterated that she was in fear of her life and whilst there were many states in India it would be impossible for her to live in safety in any one of them.

Conclusion

  1. In dealing with those considerations I have, of course, read the decision of the Tribunal very thoroughly.  In making my reading of that decision I have not only been considering the submissions made by the Applicant and by counsel for the Respondent but I have also been mindful of the fact that the Applicant was not legally represented. As a result I have conducted my own examination of the Tribunal finding to see whether I could ascertain any jurisdictional error either that had been referred to by the Applicant or that may have escaped the Applicant's notice.

  2. Turning first of all to the Applicant's first ground that the Tribunal asked itself the wrong question so that it exceeded its jurisdiction I am not of a view that the words said to have been used by the Tribunal Member to the Applicant at the hearing about the fact finding exercise that would be undertaken disclose any jurisdictional error.

  3. The Applicant says that the Tribunal Member said that the first thing he would be thinking of was whether she had a well-founded fear of persecution, in other words whether she was at risk of harm in India and if he were to find that such a risk exists he would then take the next step and determine whether that was for a Convention reason or for some other reason.

  4. It should be noted that this is in a case where the Tribunal found that the Applicant had established a well-founded fear of persecution for a Convention reason but limited to the area where she had worked between 1994 and 2004. This was not a case where the Tribunal said that the Applicant did not have well-founded fear of persecution, quite the reverse, the Tribunal accepted that. The Tribunal did find that albeit within a limited area the Applicant's fear was for a Convention reason and the Tribunal accepted the fact, as I have referred to earlier, that state protection was not available to the Applicant in the local area.

  5. This is a case where the Tribunal having made that finding, the Tribunal then assessed whether or not it was appropriate and reasonable for the Applicant to relocate to another place within her home country. The Tribunal did refer to the decision in Randhawa and in my view demonstrated a correct understanding of the principles set out in that case.

  6. Turning to the second ground which dealt with the Tribunal's relocation finding, the Applicant mis-states the finding of the Tribunal by referring to her need to act discreetly in her proselytising activities.  That is not to my mind an example of asking the wrong question. In the particulars the Applicant said:

    "The Member considered variously that the Applicant had acted discreetly in proselytising activities in the past in India and within Australia." 

  7. As counsel for the Minister pointed out, this was not what the Tribunal found. Indeed, whether the Applicant had acted discreetly in Australia or not could not be relevant to whether the Applicant had a well-founded fear or persecution in India or whether the Applicant could safely and reasonably relocate within India. Again, where the Applicant said that the Member wrongly considered that joining an organisation or a church would minimise persecution, this was not the finding that the Tribunal made. The Tribunal noted that the Applicant conducted her activities under her own banner and had been critical of some church or missionary organisations for the way that they approached the situation particularly in avoiding confrontation with members of their community.

  8. Turning to the third ground of the Tribunal failing to take account of other relevant considerations, I am of the view that counsel for the Minister is correct in pointing out that the Tribunal did consider the aspects of the evidence of Applicant, it is not necessary for the Tribunal to canvass every piece of evidence and I am of the view, however, that the Tribunal's description of the evidence generally appears to me to be quite comprehensive.

  9. The claim that the Tribunal failed to consider the Applicant's evidence that she had effectively abandoned her daughter in India does not establish a failure to take into account a relevant consideration. As was submitted and has been pointed out in such cases as Paul v Minister for Immigration and Multicultural and Indigenous Affairs that failing to take into account a relevant consideration means failing to take into account a factor or integer that the legislation requires to be considered. It does not cover the situation of failing to recite every piece of evidence either for or against.

  10. There does not appear to me to be any evidence of the Tribunal having failed to consider any of the matters required to be taken into account by the legislation. Indeed, as I said, the Tribunal did find that the Applicant had established a well-founded fear of persecution for a Convention reason but confined to her local area. The Tribunal then considered what is required to be considered in Randhawa's case, whether she could safely relocate and whether it was reasonable for her to do so and whether she had the ability to do so.

  11. The Tribunal found that relocation was an appropriate option in applying those tests because the Tribunal was not satisfied with the Applicant's contention that her activities had made her famous right throughout India. The Tribunal was satisfied that the Applicant was known within her local area but was not satisfied that the fame or notoriety extended to India as a whole. That is a question of fact, it is a finding of fact and findings of fact are matters for the Tribunal.

  12. As I explained at the commencement of the hearing, the Court does not reconsider the facts and substitute its own decision on the facts, the Court considers whether the Tribunal correctly applied the law to the case and whether the Tribunal dealt with the matter that accorded the Applicant natural justice and procedural fairness.

  13. The Applicant's oral submission which she set out and reiterated her fear of returning to India and she denied the Tribunal's factual finding that relocation within India was appropriate amount to, in my view, a challenge to the factual findings of the Tribunal.  This Court does not and cannot conduct a merits review.

  14. I did as I said earlier consider whether or not the Tribunal decision showed any other jurisdictional error not mentioned or referred to by the Applicant; I am unable to discern any. I am satisfied that no jurisdictional error has been established and as such it appears to me that the decision is a privative clause decision under the provisions of s.474 of the Migration Act. As such the decision enjoys the protection of s.474 so that no remedy such as mandamus or certiorari would apply. In my view the application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  4 April 2006

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