SZFVD v Minister for Immigration
[2006] FMCA 1019
•9 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1019 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91X, 424A, 483A |
| Applicant S256 of 2002 v Minister for Immigration [2004] FCAFC 170 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 NAWD v Minister for Immigration [2004] FCA 770 SAAP v Minister for Immigration [2005] HCA 24 SKFB v Minister for Immigration [2004] FCAFC 142 SZDPY v Minister for Immigration [2006] FCA 627 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZFVD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG555 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter |
| Advocate for the Respondents: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 3 March 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG555 of 2005
| SZFVD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 March 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 January 2005 and handed down on
8 February 2005, affirming a decision of a delegate of the first respondent made on 19 October 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFVD”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Mr S Norman, reference N04/50164 contains the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 2 September 2004. On
28 September 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On
19 October 2004, a delegate of the Minister refused to grant a protection visa and on 16 November 2004, the applicant applied for review of that decision.(Court Book (“CB”) 65)
The applicant claims to be Muslim and to have resided in Dharmabad in Nanded District in the State of Maharashtra. Dharmabad is described as a small town and 70% of its population are Hindu. The applicant claims that before he married his Hindu wife, her family threatened him and his family. He claims that in April 1997 when he was going out with his wife, her family members and members of her community attacked him brutally. He was hospitalised for several weeks and made a complaint to the police.
The applicant and his wife had to leave Dharmabad in September 1997 to get married and since that time his in-laws have regularly threatened to kill him. After he fled Dharmabad, the applicant lived with his wife in Puna, Maharashtra until December 1998 when he had to move back to Nanded and he started a small business. He claims that his in-laws came to know that the couple had moved to Nanded and the harassment and threats started again. The applicant subsequently decided to move to another country to live a peaceful life.(CB 67-68)
The applicant claims that Muslims in India live in fear of being killed in communal riots. In his case, his in-laws were after his life and if he returned to India, they would do so if they had the chance. The applicant did not believe the Indian authorities could protect him. He claims that in Dharmabad, the MP and MLA are also Hindu. Also that his police complaints were always with the aid of politicians.(CB 68)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons were contained in the respondents’ written submissions, prepared by Mr Cox, and I adopt paragraphs 9 to 12 of those submissions for the purposes of this judgment:
9.The RRT accepted that the applicant was a Muslim who married a Hindu and was attacked resulting in hospitalisation by his wife’s family and the Hindu community. It accepted that he was threatened in Nanded as claimed [CB 70.7].
10.The RRT found that the applicant could safely relocate within India to a place more distant to his wife’s family than Nanded [CB 70-71]:
10.1 On his evidence, he did not have any trouble in Puna.
10.2 He claimed that Puna was 9 hours from Dharmabad by train, and it was only when he moved to Nanded (2 ½ hours from Dharmabad) that his troubles restarted.
11.The RRT was not satisfied that the mere fact that the applicant was a Muslim who married a Hindu wife gave rise to more than a remote chance he would be susceptible to Hindu/Muslim violence, particularly should he reside further away from Dharmabad than Nanded [CB 71-72].
11.1Although country information indicated Hindu/Muslim rioting had occurred in Maharashtra State, other states were more tolerant of religious minorities. The discriminatory behaviour which was reported in these other states was not sufficiently serious harm to constitute persecution.
11.2Country information indicated that inter religious marriages could cause problems, but such marriages did occur and were subject to increasing tolerance at least in urban areas.
12.The RRT found that it was reasonable in all the circumstances for the applicant to relocate [CB 72.4-73.6]:
12.1He claimed to have made a lot of money with his business in Nanded between 1998 and 2004 and found part-time work in Australia. He had tertiary qualifications and had shown himself to be capable of relocating to Australia, which had a culture and language different to his own.
12.2Although he claimed his children would have ‘school problems’, he did not explain how these would arise.
12.3He did not claim there would be difficulties with language, infirmity, health services or education (apart from that already discussed) if he were to move to a safe area in India. Country information also did not support a finding that relocation would be unreasonable.
12.4He was willing to relocate to Puna on a previous location, and the only reason he moved to Nanded was for his wife to have the care of an elder person in the last months of her first pregnancy.
Application for review of the Tribunal’s decision
On 3 March 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 6 June 2005, the applicant filed an amended application, which contained the following grounds:
1.In making the decision the tribunal made a jurisdictional error by denying the applicant procedural fairness.
Particulars
(a) The Tribunal made adverse findings as to the authenticity of the documents and evidence provided by the applicant during the hearing with the tribunal member Mr S Normanan on the 13 January 2005.
(b) The tribunal failed to make a proper disclosure of adverse information.
(c) The tribunal did not afford the applicant the opportunity to put their case as required.
2. In making the decision the tribunal made a jurisdictional error by violating the duty it was under in satisfying itself as to eligibility of the applicants for protection visas.
Particulars
(a) The Tribunal made adverse findings as to the authenticity of the documents and evidence provided by the applicant during the hearing and thus fall under jurisdictional error in the tribunal’s decision.
(b) The findings were not based on evidence.
3. In making the decision the tribunal made a jurisdictional error by denying the mis-applying the law.
Particulars
(a) The Tribunal made adverse findings as to the availability to the applicant of protection from persecution.
(b) The Tribunal based that decision upon the ability to escape persecution by taking reasonable steps to avoid it.
(c) That is not the test. The findings of the availability of protection were not based on evidence. (copied without alteration or correction)
Reasons
The applicant appeared as a self-represented litigant with the assistance of a Hindi interpreter. He appeared before Registrar Hedge at first directions on 15 March 2005, where consent orders were made requiring the applicant to file an amended application. Although this order has been complied with, the applicant did not provide written submissions prior to the hearing. When the applicant was invited to make oral submissions in support of his application, he said that he wished to repeat his story and claims. I explained to the applicant the role of this Court is limited to judicial review of the Tribunal’s decision and it does not have the power to review the merits of the applicant’s original application. The applicant indicated that he would rely upon his amended application and did not have any further submissions to make in support of that application.
Mr Cox filed written submissions prior to the hearing. These submissions primarily respond to the grounds and particulars contained in the applicant’s amended application.
In respect of the first ground, the applicant claims the Tribunal made adverse findings about the authenticity of his documents. The particulars provided by the applicant do not identify which documents these are. The applicant does not provide any evidence to support the claim and the Tribunal’s written reasons do not indicate such a finding. There is also a claim that the Tribunal failed to properly disclose adverse information. Again, the information is not identified. Mr Cox also submits that it is alleged that the Tribunal did not afford the applicant an opportunity to put his case as required. However, it is clear that the applicant gave oral evidence to the Tribunal and was given the opportunity to address the Tribunal’s questions about relocation within India; this is clearly recorded in the Tribunal’s decision.(CB 67-70)
In the second ground, the applicant claims that the Tribunal made a jurisdictional error by violating its duty to satisfy itself of the eligibility of the applicant for a protection visa. Mr Cox submits that the intention of this ground is not immediately apparent. However, it is clear that s.65 of the Act mandates that the Tribunal refuse an application to grant a visa when it is not satisfied that the criteria prescribed for that visa have not been met. Mr Cox submits that there is additional reference to adverse findings concerning lack of evidence and that this claim is made is without elaboration. Further that the claim that the Tribunal made findings that were not based on evidence is also not particularised and finds no support from the reasons of the Tribunal. The Tribunal found that the applicant could relocate within India solely on the basis of the applicant’s own evidence.(CB 70, 72.4-73.6) The Tribunal then referred to a number of sources of country information on which it based its lack of satisfaction that the applicant could be susceptible to any more than a remote chance of harm from Hindu-Muslim violence, given his marriage to a Hindu woman.(CB 71.2-72.4)
I agree with the submissions made by Mr Cox that this ground cannot be sustained.
The third ground of review, claims that the Tribunal made an error in applying the law. Mr Cox submits that the particulars under this ground appear to misapprehend the Tribunal’s decision, which was based on finding that the applicant could safely relocate within India and that it was reasonable for him to do so. In particular (b) of the third ground, the applicant claims that the Tribunal based that decision upon his ability to escape persecution by taking reasonable steps to avoid it. Clearly the law does not require that a person modify their behaviour in order to avoid persecution: SKFB v Minister for Immigration [2004] FCAFC 142 at [10]–[13] per Branson, Finn and Finkelstein JJ; NAWD v Minister for Immigration [2004] FCA 770 at [11]–[15] per Bennett J. The applicant has not identified any statement in the Tribunal’s findings that supports this proposition and this claim cannot be sustained.
Mr Cox submits that it is well established that a finding on relocation provides a separate and independent basis for the Tribunal to affirm the refusal to grant a protection visa: Applicant S256 of 2002 v Minister for Immigration [2004] FCAFC 170 at [18].
Mr Cox also submits that the Tribunal relied on the applicant’s evidence at the hearing and the country information in coming to its conclusion that the applicant could relocate within India and that it was reasonable to expect that he could do so safely. The applicant’s evidence at the hearing was given for the purposes of the application and is within the exception in s.424A(3)(b) of the Act, to the obligation placed upon the Tribunal under s.424A(1). This is so even when the information provided was otherwise available in the protection visa application: SZEEU v Minister for Immigration [2006] FCAFC 2 at [91] per Moore J (with whom Weinberg at [173] and Allsop at [264] agreed); SZDPY v Minister for Immigration [2006] FCA 627 at [3], [7] and [14] per Kenny J.
Mr Cox also drew the Court’s attention to the applicant’s passport, which was shown to the Tribunal member at its hearing.(CB 52-57) In SZEEU v Minister for Immigration at [51]-[52], Moore J considered the situation where an applicant may bring his passport to the Tribunal hearing, having been requested to do so by the invitation to hearing letter. His Honour found that information provided by an applicant in this manner is caught by s.424A(3)(b) of the Act:
51.The submission of the Minister in relation to PRC visa information was partly dependent on the tender, in this appeal, of a copy of a page of the appellant's passport. Ultimately, the tender was not opposed and leave should be given to tender a copy of the relevant page of the passport into evidence. The Minister submitted that it can be inferred that the appellant was asked by the Tribunal to bring his passport to the hearing (having regard to a letter sent to the appellant on 25 May 2004 making that request) and the appellant did so (because the Tribunal mentions in its reasons having seen the passport at the beginning of the hearing). Accordingly, it was submitted, the information (that the appellant had a visa to enter the PRC) was not information derived by the Tribunal from the original application for a protection visa but rather information known to the Tribunal because it sighted the passport at the hearing.
52.The submission of the Minister should be accepted. While no analogue of the best evidence rule operates in the Tribunal, plainly the primary source of its knowledge that the appellant had a visa to enter the PRC arose because it saw the visa in the appellant's passport. Accordingly, it constituted information provided by the appellant for the purpose of the application for review and is thus caught by s 424A(3)(b).
The Tribunal letter sent to the applicant’s agent on 7 December 2004, invited the applicant to attend a hearing of the Tribunal on 13 January 2005. The letter notes under the heading “Important information about your hearing” that “If you have a passport you should bring it to the hearing.”(CB 49) The relevant pages from the applicant’s passport which the Tribunal considered are reproduced.(CB 52-57) I am satisfied that these pages of the applicant’s passport and the information they provide are caught by s.424A(3)(b).
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. The solicitor for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the further amended application. I am satisfied that none of the grounds identified by the applicant can be sustained. It is not apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 August 2006
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