SZHKS v Minister for Immigration
[2006] FMCA 1011
•6 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1011 |
| MIGRATION – RRT decision – Indian claiming political persecution – Tribunal found applicant could safely and reasonably relocate from Mumbai – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A, 425, 474, 483A Judiciary Act 1903 (Cth), s.39B |
| Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZHKS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3082 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 6 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Mr G R Kennett |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3082 of 2005
| SZHKS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 24 October 2005 under section 483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 6 September 2005 and handed down on 23 September 2005. The Tribunal affirmed the decision of a delegate which refused to grant protection visas to the applicants.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are the same as those of the Federal Court under section 39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have the power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants are refugees, nor whether they qualify for a protection visa or any other permission to stay in Australia.
The application to this Court is brought by a husband and wife, as were the application to the Tribunal and the original protection visa applications. However, only the husband made claims to qualify as a primary applicant for that visa and, as did the Tribunal, I shall refer to him as "the applicant". He has appeared today and has represented both himself and his wife.
His protection visa application was lodged on 4 May 2005 shortly after he arrived in Australia from India. It does not reveal the assistance of any agent or other person. In answer to the questions in the form asking why he sought protection against return to India, he referred to having been a member of the Congress Party after changing his party from the Sivasena Party. This is a Hindu political party referred to by the Tribunal as Shiv Sena.
He claimed that after changing his party, Shiv Sena "start threatening myself and my family", and that he then decided to leave his country. He claimed that if he had stayed: "they will kill myself and my family", and that this threat had been made on the telephone. In answer to the question, "Do you think authorities of that country can and will protect you if you go back? If not, why not?", he said: "Because Sivasena is not a small party. It is one of biggest political party all over India specially Mumbai; as well as one of the biggest Hindu extremist."
His application referred to him having lived and worked in Mumbai as a chef, and his wife also said that she followed that occupation. His application referred to a visit the previous year to New Zealand.
No supporting documents or greater details of these claims were given to the Department, nor to the Tribunal until the applicant attended a hearing held by the Tribunal on 6 September 2005. He attended that hearing without his wife, and did not present any documentary material to the Tribunal.
He was questioned by the Tribunal without the assistance of an interpreter. In this Court also the applicant did not request the assistance of the interpreter, and addressed the Court in English.
A transcript of what was said at the hearing is not in evidence and, as I shall indicate below, this means that I am unable to form conclusions accepting some of the submissions made by the applicant. The applicant was given a warning by me at the first court date of the possible need to provide the Court with a transcript, and the orders I made expressly indicated that any evidence of what happened at the hearing should be presented to a Court by verified transcript. The applicant indicated today that he had the tapes but they were at home, and he did not seek to tender a transcript.
In its statement of reasons, the Tribunal provided a description of its questioning, in which the applicant gave more details about his life in Mumbai and his activities as a member of the Shiv Sena Political Party, which he said he joined in approximately 1990. The Tribunal referred to country information which identified that party as having "a right wing ultra nationalist Hindu program" and indicated that at that time Shiv Sena members had been involved in violent incidents. The Tribunal said:
The applicant claimed that while a member of Shiv Sena he had collected moneys and food, 'approximately six or seven times a year', from persons in Mumbai and this money and food would be sent to 'poor Hindus'. When asked, the applicant confirmed this was the only thing he had done while he was a member of Shiv Sena. Later in the Tribunal hearing however, the applicant claimed he had been one of the 'top three of four persons' in that he had apparently been able to collect more money for the party than other party members. However, the applicant claimed that he eventually did not agree with providing such assistance and support only for Hindus and he therefore decided to leave Shiv Sena and join the Congress Party.
The applicant told the Tribunal he did this in early 2003, and shortly afterwards his house was stoned on one occasion and he was physically attacked "a couple of months later". He claimed subsequently to have received "death threats" by telephone.
The Tribunal referred to having questioned the applicant about what had happened to him after these incidents and, in particular, after he returned from his visit to New Zealand in mid August 2004. The applicant told the Tribunal that "for one month after he returned to Mumbai he was not harassed but after this time he was again subject to 'abusive and threatening' telephone calls". The Tribunal canvassed with the applicant whether he was a person of significance to the Shiv Sena Party and whether he could reside elsewhere in India.
In relation to the reasonableness of relocation, the Tribunal said:
I also asked the applicant if not for the fear he had of Shiv Sena, did he believe it unreasonable to expect him to relocate in India. The applicant did not believe he could safely relocate. I then put to him that he should be able to secure employment commensurate with his skills in India. The applicant agreed but believed he had better employment opportunities in Australia. I then put to him that both he and his wife had shown themselves both willing and able to travel to and reside in a country (Australia) with a language and culture significantly different to his own. The applicant still did not believe he could safely relocate in India.
I then asked the applicant about his 14 year old son who is living with his wife's parents in Mumbai. The son attends school in Mumbai and the applicant is in regular contact with him. There was no evidence the applicant's son has any problems in Mumbai.
Under the heading, "Findings and Reasons", the Tribunal said that, although it had doubts whether the applicant had a well founded fear of persecution for a Convention reason if he lived in Mumbai, it did not feel it necessary to explore that issue because:
for the reasons set out below, I am satisfied the applicant can safely relocate within India and I am satisfied it is reasonable in the circumstances to expect him to do so.
The Tribunal then set out four pages of reasoning explaining that finding. Its reasoning at times could be clearer but, in my opinion, it identified rational reasons for its conclusions, and these were open to it on the evidence before it.
The Tribunal assessed the applicant's evidence about his activities and position within Shiv Sena, and did not accept the applicant's assessment that he was a person of interest to Shiv Sena members outside Mumbai. It referred to a claim by the applicant that no former member of Shiv Sena could safely reside in India, and said:
The applicant claimed that he knew of 7 persons who had been killed after they had attempted to leave Shiv Sena. I indicated that while I had no knowledge of the 7 persons to whom he referred, I assumed they may have had a different former profile in Shiv Sena than he; and or that they had been unfortunate; and or they had remained in Mumbai. The applicant agreed they had remained in Mumbai. The applicant then claimed that no person who had been a member of Shiv Sena and left, could safely reside in India. I put to him that I would have anticipated that 'many, many persons' would have left Shiv Sena (and to which the applicant agreed), and I may not accept that none of these persons could safely reside in India. The applicant then claimed such persons could not remain safely in India. That said, and while I could not find any country information directly on point, none of the country information I considered satisfied me that persons who had changed their political allegiances from the Shiv Sena Party, would not be able to continue to reside safely in India (ie. see CX83699, ‘The political situation and Hindu-Muslim relations in the state of Tamil Nadu’, Country Issues Brief, July 2003; US Department of State 2004, Country Reports on Human Rights Practices for 2003 – India, 25 February \\NTSSYD\REFER\Research\usdos\2003us_rep\India2003.htm; UK Home Office 2003, India Country Report, April 2004, Amnesty International Report 2003, India, Accordingly, I do not accept that persons who had changed their political allegiance from the Shiv Sena party would never be able to reside safely in India..
The Tribunal said that its conclusion that Shiv Sena would not be motivated to trace the applicant if he relocated within India was also supported by elements in his history prior to coming to Australia. The Tribunal also said that country information it had seen did not satisfy it that "Shiv Sena would have the 'networks' to trace him should he relocate within India", and it referred to its discussion of that issue with the applicant at the hearing. The Tribunal thought that the applicant's involvement in politics in India did not suggest that he would be generally at risk of persecution in India.
The Tribunal expressly addressed the issue required to be addressed under authorities such as Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, of whether relocation would be reasonable taking into account the personal circumstances of the applicant and his family. It formed a view that he would be able to obtain employment commensurate with his skills outside Mumbai, and that the family had shown that it was able to live separated from their son if necessary.
I have carefully considered the Tribunal's reasoning in relation to relocation, and am unable to find that the Tribunal did not arrive at findings which were not open to it on the evidence before it. I am unable to identify any jurisdictional error in its reasoning or procedures.
The applicant's application to this Court completely lacked any particulars of an allegation of jurisdictional error, but an amended application raises some particular arguments. It contains five grounds:
1.The Tribunal failed to give consideration to the fact that if the Applicant relocated to another state or area he would be abducted by the Siva Sena party members who are heartless murderers.
2.The Tribunal constructively failed to give any valid reason why it would be safe to relocate to another part of India when the Applicant was facing harassment from the Siva Sena.
3.Failed to consider the fact that the Applicant is already deserted the Siva Sena and it would be dangerous for the Applicant to still continue to live in any part of India without fear of the Siva Sena member who consider the Applicant to collect more money for the Congress party as did for Siva Sena.
4.That the Tribunal failed to give any opportunity to elaborate his claims by interrupting the Applicant at every point stating that the matter would be considered when drafting its finding and reasons and hence made a jurisdictional error.
5.That the Tribunal in its decision gave reasons based on its presumption on every aspect and failed to rely on the material facts stating that Siva Sena would not trace the Applicant and hence made a jurisdictional error and unfairly gave biased reasons.
Grounds 1, 2 and 3, in my opinion, are not made out. On my reading of the Tribunal's reasoning it has addressed the elements in the applicant's claims which are referred to in these paragraphs. It made no jurisdictional error by assessing them in the manner I have set out above. I do not accept the contention in ground 2 that the Tribunal failed to give "any valid reason why it would be safe to relocate to another part of India".
Ground 4 makes a contention that the applicant was denied the opportunity to give his evidence at a hearing implicitly required under Full Court authorities addressing the Tribunal’s duties arising under s.425 of the Migration Act. These were discussed in the recent decision of Gray J: Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584 at [82]-[92]. In my opinion, these authorities remain binding on me, and are not inconsistent with Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61.
Further claims of inadequacies in the Tribunal’s conduct of its hearing are made in the applicant's written submission. These include a contention that the Tribunal misinterpreted his responses where the applicant nodded after a question by the Tribunal:
The Applicant wish to submit that he is used to the mannerism whereby a question is put to him he indicates by the nod of his head that he understands the question before he answers to questions. The Tribunal Member had misconstrued and taken advantage of the above mannerism and quoted the above statement in brackets presuming that the Applicant agree to what the Tribunal member had put to him. The Tribunal member continued to reject the Applicants claims and submissions that the Applicant proceeded to present. The Applicant vehemently object the Tribunal member’s above comments and categorically states that he never agreed to any of the Tribunal Members’ questions or suggestions during the interview so as to give a positive answer to the questions put to him.
It is contended that the Tribunal thereby wrongly attributed an agreement of the applicant to propositions put by the Tribunal, although no specific incidences of this are identified.
The Tribunal is also criticised as not questioning the applicant sufficiently, and that it “continued to block the Applicant from giving more evidence during the hearing”. The complaint of interruptions is also maintained.
However, all these criticisms lack sufficient evidentiary support in the material before me. I am unable to find such evidence in the Tribunal's own description of the hearing, and the absence of the transcript prevents me from upholding the applicant's contentions. I am unable to conclude from the statements by the Tribunal in its reasons that the applicant had agreed with some of its propositions, that it was not open to the Tribunal to have made those findings.
The complaint in ground 5 of the amended application is not easily understood in legal terms. I consider that it is a complaint that the Tribunal did not assess the applicant's evidence with an open mind, so that its conclusions were unfairly arrived at. The applicant’s written submission also contains an allegation that “the Tribunal showed apprehended and ostensible bias during the hearing and hence made a jurisdictional error”. To the extent that this is based on criticisms of the conduct of the hearing, such as those which I have addressed above, I am unable for the same reason to uphold the contention of apprehended or ostensible bias. I am unable to find sufficient evidentiary support in the Tribunal's statement of reasons, and the applicant has not presented any better evidence of what happened at the hearing.
I consider that the criticisms made of the Tribunal's findings in the applicant's written submission, which contend that the Tribunal did not fairly consider the applicant's evidence, amount only to challenges to the Tribunal's findings of fact. However, it was the task of the Tribunal to arrive at those findings, and the fact that they were adverse to the applicant does not, in my opinion, establish that it did not go about its task with an open mind.
The applicant did not seek to make any oral submissions additional to those in his written submission.
For the above reasons, I have been unable to accept any of the grounds of review raised by the applicant's amended application and his written submissions. I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision within s.474 and I must dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 26 July 2006
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