SZFVO v Minister for Immigration

[2006] FMCA 1833

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFVO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1833

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal breached s.424A(1) of the Migration Act1958 (Cth) – whether it was reasonable for the applicant to relocate within India – whether relocation finding was a separate and independent finding unaffected by error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A(1); 424A(3)(b); pt.8 div.2; div.4

VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611
Abebe v The Commonwealth (1999) 197 CLR 510
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660

Applicant: SZFVO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG580 of 2005

Judgment of: Emmett FM

Hearing date: 27 November 2006

Date of last submission: 27 November 2006

Delivered at: Sydney

Delivered on: 14 December 2006

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Mr J. Mitchell

Solicitors for the Respondent: Ms K. Rose, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG580 of 2005

SZFVO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 January 2005 and handed down on 17 February 2005.

2. The applicant was born on 23 July 1982 and claims to be from India and of Shia Ismaili ethnicity and Muslim faith (“the Applicant”).

3. The Applicant claims that prior to arriving in Australia he was a student.

4. The Applicant arrived in Australia on 2 September 2004, having legally departed from Mumbai on a passport issued in his own name and a visitor’s visa issued on 17 August 2004.

5. On 28 September 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 Act.

6. In his protection visa application, the Applicant claimed that he feared persecution by Congress Party workers because his father is an active member of the Bharatiya Janata Party (“the BJP”), which is the opposition party. The Applicant claimed that during the campaigns for the last election, in which the Congress party won, Congress party workers attacked his home, physically abused both he and his family and ransacked the house.

7. On 12 October 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

8. On 12 November 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application. On 28 January 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 8 March 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. 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.

3. Australia has protection obligations to a refugee on Australian territory.

4. 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.”

5. 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 Tribunal proceeding

1. In his application for review by the Tribunal the Applicant stated:

   “DIMIA decision is based on a General information. They have not considered how individual like me is suffering in India.

   I request you to consider my case and give me a chance to discuss my case personally in face to face interview.”

2. No further material was provided by the Applicant in support of his grounds.

3. The Tribunal had before it the Department’s file including the protection visa application and the Delegate’s record. The Applicant appeared at a hearing before the Tribunal and gave oral evidence.

4. The Tribunal recited the Applicant’s claims made in support of his protection visa application and summarised the further oral evidence given by the Applicant at the Tribunal hearing.

5. The Tribunal distilled the Applicant’s claims into three claims.

6. The first claim was that the Applicant feared persecution for reasons of his father’s political activities on behalf of the BJP in India. However, the Tribunal was not satisfied that the activities engaged in by the Applicant’s father would have given the father a political profile that would have rendered him of any continuing interest to the Congress Party or anyone else in Nanded City where they lived.

7. Nevertheless, the Tribunal was prepared to accept that the Applicant’s father may have been of some adverse interest to the Congress Party in June 2003 and noted thereafter the father left Nanded City. The Tribunal noted that the Applicant claimed that, since June 2003, his father had resided in a number of locations, however, was unable to settle in one location as he feared he would be killed by Congress Party members.

8. However, the Tribunal noted that the Applicant stated that his father returned to Nanded City “sometimes”. When the Tribunal raised with the Applicant its concerns that his father would return to Nanded City at all, the Applicant responded that he had returned on only two occasions since June 2003. The Tribunal did not accept that the Applicant would not have previously brought to the Tribunal’s attention that his father had only returned to Nanded City on two occasions, if, in fact, this was true. The Tribunal found that this claim was made only after the Tribunal had put to the Applicant that his father’s return would have presumably put him at risk if he was of continuing adverse interest to the Congress Party and noted the Applicant’s response that his father had returned on only one occasion.

9. The Tribunal did not accept that the Applicant’s father feared persecution by the Congress Party, nor that the Congress Party had an interest in locating the father either in Nanded City or at any of the other locations that he occupied from time to time.

10. The Tribunal did not accept that the Applicant’s father had to continually relocate in order to avoid persecution for reasons of his alleged form of political activities or for any other Convention reason.

11. The second claim distilled by the Tribunal, was a claim by the Applicant to fear the political enemies of his party, namely, Congress Party members.

12. The Tribunal had regard to information provided by the Applicant in his protection visa application, where he claimed to have resided since birth until August 2004 at the same address. The Tribunal expressed concerns about this information where the Applicant told the Tribunal that he and his family had not resided in Nanded City for more than 18 months prior to the Tribunal hearing. The Tribunal noted that it put to the Applicant that his oral claims contradicted the information in his protection visa application, in which he claimed to have resided in a named location since birth till August 2004.

13. The Tribunal noted the Applicant’s claims of having political ambitions within the BJP. The Tribunal noted that it had put to the Applicant that he was now 23 years of age and had not yet undertaken any political activities prior to or since his departure from India. The Tribunal did not accept that the Applicant has any political ambition and little, if any, political convictions. Accordingly, the Tribunal found that he would not come to the adverse attention of authorities in India because of any political convictions, were he to return to India.

14. The third claim identified by the Tribunal, was a claim by the Applicant of a fear of persecution in India for reasons of his Muslim religion.

15. The Tribunal noted that it was not necessary for it to conclusively determine whether the Applicant has a well founded fear of persecution at his place of residence in India where, inter alia, the Tribunal is satisfied that he could safely relocate within that country and it is reasonable for him to expect him to do so. The Tribunal had regard to the independent country information and concluded that, the mere fact of being Muslim in India did not give rise to a well founded fear of persecution.

16. The Tribunal considered the issue of relocation. The Tribunal found that, even if the Applicant had a well founded fear of persecution for reason of his Muslim faith in Maharashtra state (of which the Tribunal noted it was not satisfied), it was satisfied that he could safely and reasonably relocate within India to either Tamil Nadu, Andhra Pradesh, Kerala or Karnataka. The Tribunal noted that discriminatory behaviour had been reported in those areas. However, the nature of the discriminatory behaviour was not found by the Tribunal to involve harm of a sufficiently serious nature as to constitute persecution for the purposes of the Convention. Accordingly, the Tribunal concluded that the Applicant would not have a well founded fear of persecution for any Convention reason, should he relocate to one of those states.

17. The Tribunal then went on to consider whether it was reasonable to expect the Applicant to relocate. The Tribunal had regard to the fact that he has obtained a Bachelor of Commerce degree in India, spoke Hindi, and that he had travelled to Australia, where he had secured accommodation and part time work in a culture significantly different to his own.

18. The Tribunal observed that there was no evidence before it in relation to any concerns on the part of the Applicant with respect to infirmity, health services or education. In any event, the Tribunal found that independent country information before it would not support a finding that relocation on those grounds would be unreasonable.

19. The Tribunal concluded that it was reasonable to expect the Applicant to safely relocate within India.

20. The Tribunal concluded, having considered the evidence as a whole, that it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention and therefore affirmed the decision not to grant the Applicant a protection visa.

The proceeding before this Court

1. On 8 March 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. On 17 June 2005, the Applicant filed an amended application, which he confirmed contained the grounds upon which he relied for relief. The amended application is in the following terms:

   “GROUND 1

   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 and declared the applicant not truthful and credible, without any proper basis, inquiries by the tribunal and its own sources.

   (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.

   GROUND: 2

   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.

   GROUND: 3

   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.”

Ground 1

1. Ground 1 complains that the Tribunal denied the Applicant procedural fairness.

2. Section 422B of the Act was in force at the time of the Applicant’s hearing before the Tribunal. Section 422B states that it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. One of the requirements provided for in div.4 of the Act is s.424A(1) of the Act.

Section 424A(1) of the Act

1. As is plain from the summary of the hearing before the Tribunal in these Reasons above at paragraphs 25 and 26, the Tribunal did have regard to inconsistencies in information contained in the Applicant’s protection visa application and oral evidence given to the Tribunal as part of the reason for affirming the decision under review.

2. However, the First Respondent submits that the information in the protection visa application was given by the Applicant to the Tribunal for the purposes of his review and is, therefore, excluded from the requirements of s.424A(1) of the Act by operation of s.424A(3)(b) of the Act. The First Respondent contended that the Applicant gave the information in his protection visa application to the Tribunal for purposes of his review, by the following words used in his review application:

   “DIMIA decision is based on a General information. They have not considered how individual like me is suffering in India.

   I request you to consider my case and give me a chance to discuss my case personally in face to face interview.”

3. The First Respondent referred the Court to various authorities where Courts had held that an applicant had provided information contained in his protection visa application to the Tribunal for the purposes of its review.

4. For example, where an applicant had said “please refer to my previous statement for further information” (VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [13] per Merkel J); where an applicant had included in his application for review a statutory declaration consisting of a critical examination of the reasons given by the delegate, in the course of which, the applicant referred several times to claims originally made (SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5]-[6] per Gyles J); where an applicant’s application for review is accompanied by a letter that complained that his claims had not been dealt with fairly and carefully by the delegate (SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 at [16] per Young J).

5. In all the cases cited by the First Respondent, the applicants had made specific reference to claims made in their protection visa application and how they had been dealt with by the delegate.

6. In the proceeding before this Court, the Applicant makes no reference in his review application to any of his claims made in his protection visa application. He merely requests the Tribunal to “consider my case and give me a chance to discuss my case personally in face to face interview.” To my mind, those words readily convey a request by the Applicant to the Tribunal for an opportunity for the Tribunal to hear from him about what he has to say about his case. I do not understand those words to be a republication to the Tribunal of the Applicant’s claims in his protection visa application. Nor, do these words convey the giving by the Applicant of the information contained in the Applicant’s protection visa application to the Tribunal for the purpose of its review.

7. The Tribunal’s error in failing to comply with the obligations of s.424A(1) of the Act is a jurisdictional error on the part of the Tribunal.

8. However, even if the Tribunal did fall into error in having regard to inconsistencies arising from material in the Applicant’s protection visa application and his oral evidence, the Tribunal’s finding that it was possible for the Applicant to relocate within India, and that it was reasonable for the Applicant to do so, is a separate and independent finding and is not affected by error.

9. The Tribunal considered whether or not it was possible for the Applicant to relocate within parts of India. The Tribunal concluded that, in the Applicant’s particular circumstances, it was reasonable for the Applicant to relocate. The Tribunal went on to identify the particular states to which the Applicant could relocate.

10. The Tribunal also considered the fact that information disclosed that there may still be some discrimination to persons such as the Applicant, in those states. However, the Tribunal found that the independent information disclosed that the discrimination manifested itself in conduct that was not serious harm such as to amount to persecution under the Convention. That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.

11. The Tribunal went on to consider the individual circumstances of the Applicant and concluded that it was reasonable for the Applicant to relocate (see these Reasons above at paragraphs 30 to 34). There is no suggestion that all the information relied upon by the Tribunal in its consideration of relocation was information other than information given by the Applicant to the Tribunal for the purposes of its review. Certainly, the information relied upon has not come from, or solely from, the Applicant’s protection visa application. Again, those were findings of fact by the Tribunal they were open to it on the evidence and material before it and for which it provided reasons.

Ground 1 paragraph (a)

1. To the extent that paragraph 1(a) complains that the Tribunal made adverse findings as to authenticity of documents in evidence provided by the Applicant, such a ground is misconceived as there were no documents provided by the Applicant.

1. To the extent that paragraph 1(a) asserts that the Tribunal found the Applicant not to be credible witness without any proper basis or without making enquiries, such a ground cannot succeed. The credit of an applicant is a matter for the Tribunal. The Tribunal made those findings upon evidence and material before it and for which it provided reasons. There is no obligation on a Tribunal to make enquiries for the purpose of substantiating the Applicant’s claims. Further, it is not for the Tribunal to make the Applicant’s case for him. It is for the Applicant to satisfy the Tribunal that the criteria required, pursuant to ss.36 and 65 of the Act, for a protection visa are met by the Applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]).

Ground 1 paragraph (b)

1. Paragraph (b) does not disclose any particulars of the information relied upon. In the circumstances, it is not possible to consider this particular further.

Ground 1 paragraph (c)

1. Paragraph (c) complains that the Applicant was not afforded an opportunity to put his case. That complaint cannot be made out in circumstances where the Applicant attended a hearing before the Tribunal and made oral submissions. It is clear that the Tribunal considered the Applicant’s claims in detail, understood the nature of the Applicant’s claims and purported to make findings and conclusion based on the evidence before it and for which it provided reasons.

2. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 appears to rely on similar particulars as those referred to in ground 1 paragraph (a).

2. Again neither of particulars (a) or (b) contain any further particulars and both have been dealt with in these Reasons above in consideration of ground 1.

3. Accordingly, ground 2 is not made out.

Ground 3

1. To the extent that ground 3 is a complaint about relocation, the findings by the Tribunal based on relocation were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the proper tests in the consideration of relocation (Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]). The Tribunal’s consideration and findings in respect of relocation are referred to above in these Reasons in paragraphs 30 to 34 and paragraphs 45 to 48.

2. Accordingly, ground 3 is not made out.

Conclusion

1. The Tribunal’s conclusions in respect of relocation were open to it, contained no error and are in no way infected by the Tribunal’s failure to comply with s.424A(1) of the Act.

2. The Applicant attended a hearing, had a full merits review, gave oral evidence and the Tribunal gave clear, correct and independent consideration to the issue of relocation. The determination with respect to relocation was unaffected by any error that enlivened the Tribunal’s obligations under s.424A(1) of the Act. As such, it formed a separate and independent basis for the decision of the Tribunal to refuse the Applicant a protection visa, namely, reasonableness of relocation. (Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]).

3. Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court, commenced by way of application filed 8 March 2005, is dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  14 December 2006