SZFXJ v Minister for Immigration
[2006] FMCA 1317
•28 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1317 |
| MIGRATION – Where Tribunal may have made a jurisdictional error but there are independent grounds for concluding that the applicant is not entitled to a visa. |
| Migration Act 1958, s.424A |
| SZEEU v Minister for Immigration [2006] 150 FCR 214 VBAP v Minister for Immigration [2005] FCA 965 SZEVE v Minister for Immigration [2006] FCA 390 NBAN v Minister for Immigration [2006] FCA 57 |
| Applicant: | SZFXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG665 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 28 August 2006 |
| Date of Last Submission: | 28 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Ms R Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG665 of 2005
| SZFXJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 24 February 2004. On 7 April 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 September 2004 a delegate of the Minister refused to grant a protection visa and on 8 October 2004 the applicant applied for review of that decision.
The applicant attended a hearing with the Tribunal and on 4 February 2005 the Tribunal determined to affirm the decision not to grant a protection visa. It handed that decision down on 25 February 2005.
The basis for the applicant’s claim to have a well-founded fear of persecution for the Convention reason of imputed political opinion arises out of his association with his father, a teacher in their local village. The father had taken into his home from time to time students to whom he gave private tuition. One of those students was a Mr SS. The applicant said that his father commenced tutoring SS in 1991. The applicant claimed that it later became known that SS was involved with a Sikh terrorist movement. The applicant’s father stopped tutoring SS in either 1991 or 1992 and last saw SS in 1992.
Notwithstanding this, the applicant claimed that his father had been taken by the police on a number of occasions between 1992 and 1996 and on one occasion the applicant was also taken by the police although at the time he was only a youth of approximately 16 years of age.
The applicant then told of how his father had escaped from police custody and vanished. He had been told that no one knew of his father’s whereabouts, but it appears that sometime prior to the Tribunal hearing, his father’s whereabouts in the United States of America were revealed to him and that his father won what appears to be the United States equivalent of a hearing of this type and had his own application for refugee status remitted back for reconsideration by the appropriate Federal Court.
The applicant told the Tribunal that in 2002 he had left India for the Philippines where his uncle had a business lending money. The applicant worked with his uncle but after some time his uncle experienced troubles in that country. He claimed that his uncle had been attacked by a policeman and other people because of a debt owed to him by a policeman’s wife. The applicant told the Tribunal and produced certain documentation in corroboration, that his uncle had died of his injuries in India.
The applicant claimed that he was unable to return to the Philippines because of fear that he would be treated similarly. The applicant claimed that he could not return to India because he thought that the police in his home village would continue to harass him owing to the imputed connection between his family and SS. The applicant had told the Tribunal that he had spent some months in Delhi with an uncle of his but when he was asked why he could not return there he informed the Tribunal that the uncle had left for London.
The Tribunal in its findings and reasons articulated the difficulty which it had in accepting that his father and himself, two members of a Hindu family, would become the objects of constant attention from the police on the grounds that they had an association with a person who was later discovered to be a Sikh militant. The Tribunal expressed the view that it was highly unlikely that the father and the son would continue to be harassed by the police in respect of an association which had ended in 1992.
The Tribunal also had difficulty accepting that the applicant’s father had gone missing in 1996 and that his whereabouts had been unknown until November 2004 when he revealed himself to be in the United States. The applicant had suggested that his family had told him that his father had disappeared and was assumed dead. As the Tribunal states at [CB 118]:
“The Tribunal finds it implausible and therefore does not accept that his father would leave the country and not tell his family, except for his mother, that he was alive and well. It does not accept that the applicant’s parents would lead their children to believe that their father had disappeared and was most probably dead for the last 8 years. Although the applicant claimed that the whereabouts of his father was kept from them because they were young and it was to be kept a secret, the Tribunal notes that the applicant was 15 years old when his father was purported to go missing, an age at which the desired discretion could be appreciated. It does not accept that his mother and father would not have told him at any time between then and the last eight years that his father was alive and well.”
The Tribunal made a further finding at [CB 119]:
“The Tribunal finds that the applicant’s return to India in 2003 to care for his sick mother is evidence that he did not have a well‑founded fear of persecution at that time. The Tribunal accepts that the applicant may have received threatening calls and demands for money because people had learnt that he worked as a financier in Manila and believed he had money. The Tribunal notes that the applicant was in India until September 2003 and claimed nothing happened apart from these blank and threatening telephone calls …
The Tribunal has considerable doubt as to the claimed frequency of these calls and finds it implausible that whoever was making these calls would invest so much time and money into harassing and threatening him without any further action. The Tribunal therefore does not accept that the applicant was threatened and harassed to the extent he claimed at the hearing. It does not accept the threats the applicant received constituted serious harm within the meaning of s91R(1)(b) of the Migration Act. The Tribunal finds that the threats the applicant received are more properly characterised as declarations of intent and on their own do not constitute serious harm (MIMIA v VBAO [2004] FCA 1495).”
Finally, the Tribunal came to the finding, based upon the evidence given by the applicant and his ability to move to other countries, that it would be reasonable for him to relocate to Delhi:
“The Tribunal notes that the applicant has not made any claims that he ever experienced any problems whilst he was in Delhi in the past, especially during his last visit to India when he was receiving the threatening calls. On that basis, the Tribunal is satisfied relocation would be a reasonable option if the applicant continued to have a subjective fear in the Punjab” [CB 120]
The applicant provided the court with a written submission which suggests that the Tribunal misunderstood his case, in particular with reference to his father. He claimed that his father had been accepted as a credible witness by the Board of Immigration Appeals of the USA and therefore the Tribunal should have accepted the applicant’s story.
Having read the decision of the Tribunal and considered the evidence put before it which is contained in the green book, I cannot support the applicant’s view that the Tribunal did not consider his claims. I am of the view that the Tribunal gave a very thorough consideration to all of his claims and provided logical reasons based upon available evidence for coming to the view which it did that it failed to be satisfied that the applicant had a well-founded fear.
Even though the applicant has now shown me what purports to be a decision of the United States Immigration Court that his father’s application for refugee status was granted, this avails him not. I have no details of what his father told the United States courts and none was provided to the Tribunal. In any event, the Tribunal’s duty is to listen to and assess the claims of this individual and not his father.
The applicant claims that the Tribunal made a jurisdictional error by not affording sufficient weight to his evidence. The Tribunal’s duty is to assess the evidence and decide whether it amounts to a sufficient case to satisfy it that the applicant has the well-founded fear of persecution that he claims to have. It is for the Tribunal alone to make the decision whether or not the applicant’s evidence is satisfactory and to make a decision as to what is likely and what is not likely to result from the story provided by the applicant.
This Tribunal thought it inherently unlikely that the applicant would suffer from any further problems as a result of what is now a very old association with a person who the applicant says was considered to be a terrorist but in respect of whom no corroborative evidence has been provided. The Tribunal is also entitled to take a view of the applicant’s credibility which it did in this case based upon the applicant’s own statements. For this court to interfere in the Tribunal’s findings in that regard would be to provide the applicant with impermissible merits relief.
The Tribunal did not consider the applicant’s claims concerning his return to the Philippines although it did express the view that any persecution which he had alleged in regard to that country did not appear to be Convention related or serious. The Tribunal took this position because it was satisfied that the applicant could return to India. There is no jurisdictional error in that approach.
The only ground upon which it might be said that the Tribunal fell into jurisdictional error is in relation to the way in which it makes some findings about credibility at [CB 117] by comparing statements made by the applicant at the hearing with a document found at [CB 007] that was given to the department when the applicant made his application for a protection visa. The inconsistencies refer to the date upon which his father allegedly disappeared. The Minister says that it could be argued that the applicant was obliged to be provided with written information that this information and the discrepancies arising therefrom might be the reason or part of the reason for confirming the decision under review (s.424A as interpreted in SZEEU v Minister for Immigration [2006] 150 FCR 214).
Although I believe it is arguable that the views expressed by the Tribunal reached the heights of “part of the reason,” it is not necessary for me to involve myself in such an argument because the Tribunal had other grounds for concluding that the applicant was not a person to whom Australia owed protection obligations. It is to be remembered that the applicant returned to India after he left the Philippines and remained in that country for several months. That caused the Tribunal to suggest that the applicant did not have a subjective fear which is currently part of the requirement for a “well-founded fear.” That finding is entirely independent of any credibility problems arising out of the matters previously referred to and contained at [CB 117]. There is another independent finding. This is the finding that the applicant could relocate to Delhi.
In these circumstances I am able to find that the jurisdictional error that the Tribunal may have fallen into is irrelevant for the purposes of this decision and that the independent findings are free of such error and the matter should not be referred; VBAP v Minister for Immigration [2005] FCA 965 per North J followed by Edmonds J in SZEVE v Minister for Immigration [2006] FCA 390 and Moore J in NBAN v Minister for Immigration [2006] FCA 57.
I order that the application be dismissed and that the applicant pay the respondent’s costs assessed in the sum of $5,000.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: