SZHRQ v Minister for Immigration
[2006] FMCA 1504
•6 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1504 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), s.422B |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZHRQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3486 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3486 of 2005
| SZHRQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, arrived in Australia in March 2005 and applied for a protection visa.
The application was refused and he sought review by the Tribunal.
The applicant claimed to be a Muslim who had formed a romantic attachment to a Hindu girl whose father (a BJP Hindu religious leader) did not approve of the relationship and that after resulting communal violence in which his father’s leg was broken his girlfriend had committed suicide. He claimed that he and a family member had been attacked at the direction of the girlfriend’s father who intended to have him killed. He claimed that he was forced to flee from the area in which he lived and that the girlfriend’s father continued to have him chased all over India wishing him to be caught and murdered in vengeance for the death of his daughter.
The Tribunal found primarily that any harm that might befall the applicant did not arise for a Convention reason as the essential and significant motivation for the persecution feared by the applicant was a personal dispute arising from the applicant’s former relationship with the daughter of the person he feared. It found no evidence that the girl’s father, should he use any political influence to which he had access, would be using the power of the state to harass or harm the applicant.
In the alternative the Tribunal found that the applicant, if he feared persecution, could avoid persecution from his girlfriend’s father by relocating to another city within India and that such relocation would be reasonable in the particular circumstances of the applicant.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this court on 29 November 2005. He filed an amended application on 26 April 2006 containing additional grounds. Accordingly, I have considered all the grounds raised in both the application and the amended application as well as what the applicant said in oral submissions today.
The first four grounds in the application can be considered together. The applicant claims that the Tribunal failed to see that he satisfied the criteria in the Refugees Convention, that he satisfied the four key elements of the Convention definition of “refugee”, that his claims were credible, that he had faced a lot of difficulties and that if it had doubts it should have given the benefit of the doubt to the applicant.
These grounds take issue with the merits of the Tribunal decision. Merits review is not available in this Court. Moreover the reason for the Tribunal decision was that any harm that might befall the applicant would not arise for a Convention reason. Insofar as it did touch on the credibility of the applicant (finding certain claims to be speculative and fanciful) in considering the alternative basis for its decision (the availability of relocation), credibility is a matter for the Tribunal.
Ground 5 in the application is that the Tribunal failed to see that the motivation for the persecution was a personal dispute. However, as submitted for the first respondent, this contention is misconceived. The Tribunal indeed accepted, and its primary finding was, that the essential and significant motivation for the persecution feared was a personal dispute.
Grounds 6 and 7 are that the Tribunal had taken the facts very lightly and that a reading of the decision would go to show that the Tribunal was interested in dismissing the claim rather than dealing with it on the real points stated by the applicant.
As expressed, ground 6 does not articulate a jurisdictional error but insofar as it and ground 7 intend to contend the decision was affected by either actual or apprehended bias, there is no basis in the material before the court for such a contention. Actual bias is not easily proved and it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). There is nothing in the material before the court to establish actual bias in the sense considered by the authorities, in particular the decision of the High Court in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [72].
Nor is this a case in which the reasons for the decision or the material before the court are such as to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial or unprejudiced mind to the resolution of the question before it (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] – [28]). The Tribunal dealt with the claims of the applicant as set out above, but was not satisfied that any harm feared was for a Convention reason.
Ground 8 is that the Tribunal failed to see that the applicant had fear because of religion which was Convention based. However, as set out above, the Tribunal had regard to the applicant’s claims in relation to his relationship as a Muslim with a Hindu woman but, on the applicant’s own evidence, was not satisfied that any harm feared was for a Convention reason. In that respect I note that the Tribunal referred in its reasons for decision to an exchange which was said to have occurred in the Tribunal hearing in which it put to the applicant that the actions of the father of his former girlfriend arose from personal animosity and would not engage the provisions of the Refugees Convention as such. The applicant replied that he had been a member of the Muslim League in college but the Tribunal reiterated that it did not appear that the conflict was one where the essential motivation of the person the applicant feared arose from religion but rather from personal animosity. Reading the Tribunal decision fairly and as a whole, it is clear that the Tribunal considered but rejected the applicant’s claims to fear persecution on the basis of religion.
The applicant sought in ground 9 of the application to file additional grounds and he did, as indicated, file an amended application. The first two grounds in the amended application again traverse the merits of the Tribunal decision, repeating the claim that the Tribunal failed to see that the applicant satisfied the criteria under the Refugees Convention and met the elements of the definition of “refugee”.
Ground 3 in the amended application contends that the Tribunal committed jurisdictional and factual error in not considering the facts in detail. It is said that a reading of the reasons for decision would show that the Tribunal has not considered the case entirely, the reasons being given in six pages, but the case being “dealt with” for approximately one page. This ground does not identify any particular claim which was not addressed by the Tribunal. On the material before the Court there is no substance in this ground, as it appears that the Tribunal did consider the claims advanced by the applicant in connection with his protection visa application. There is nothing in the material before the court to suggest that any other claims were raised with the Tribunal. In particular, as indicated above, the Tribunal did have regard to whether persecution by the father of the applicant’s former girlfriend was religiously motivated, but found that the essential and significant reason for any such persecution was personal animosity.
Ground 4 states generally that the Tribunal did not give a “fair deal” to the applicant and similarly ground 9 contends generally that the matter was not considered properly and that hence the applicant had been denied procedural fairness. It is not necessary to consider the scope of s.422B of the Migration Act 1958, as on the material before the court there is nothing to support the assertion that the applicant was denied procedural fairness.
On the contrary, the reasons for decision, the only evidence before the court of what occurred in the Tribunal hearing, suggest that the Tribunal raised with the applicant the central issues, in particular, the motivation for any persecution and the potential for relocation.
In oral submissions the applicant contended that the Tribunal fell into error in failing to make inquiries in relation to the statements he put in his application and suggested that the facts in his application should have been verified properly by the Tribunal. However, such contentions do not establish a lack of procedural fairness or other jurisdictional error.
It is well established (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 107) that it is for an applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well-founded fear of persecution for a Convention reason and that, as Kirby J stated in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at 78, the function of the Tribunal is to respond to the case that the applicant advances.
Insofar as the applicant contends that the Tribunal was under a duty to make enquiries, whatever the scope of the limited obligation which has been in some cases said to require a Tribunal to make enquiries (see in particular the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155), this is not such a case. The applicant did not identify any particular area of inquiry which the Tribunal might pursue had it wished to do so. Moreover, as indicated above, the primary basis for the Tribunal’s finding was not a rejection of the applicant’s claims as to what occurred to him but rather a finding that any harm that had befallen or might befall him did not arise for a Convention reason.
No lack of procedural fairness is established in the manner contended in grounds 4 or 9 or on the basis of the oral submissions.
Ground 5 of the amended application contends that the reasons given by the Tribunal for rejection were vague and that the Tribunal, which is bound to help the applicant as far as possible, had simply dismissed the case. However, the Tribunal did disclose its reasons for decision, albeit briefly, and this contention does not establish jurisdictional error.
There is no ground 6 in the amended application. Ground 7 contends that the Tribunal failed to see that the applicant sought asylum because he could not get any kind of protection or help from any of the authorities and therefore fled India. The Tribunal understood and referred to the applicant’s claim that he could not get protection from the authorities in India and his claim that an attack had been reported to the police but that the police would take no action because of the political influence of the girl’s father. However the Tribunal addressed this claim in finding no evidence that the girl’s father, should he use any political influence to which he had access, would be using the power of the State to harass or harm the applicant and, more specifically, in its failure to accept that the girlfriend’s father (who was said to be a State politician) had such a level of political influence that he could also influence the police throughout India. It has not been established that the Tribunal failed to consider this aspect of the applicant’s claims.
Ground 8 is that the Tribunal seemed to have dealt with the matter with a pre-determined mind. As discussed above, there is no basis for an assertion that the Tribunal’s decision was affected by actual or apprehended bias.
Ground 10 contends that the Tribunal relied on some research advice, refers to page 25 of the green book, and contends that the Tribunal erred in accepting third party sources and not accepting the real situation as stated by the applicant. However, the Tribunal did not rely upon any country information or material from third party sources in the manner contended. Page 25 of the green book is the applicant’s declaration as part of his protection visa application and is irrelevant to the issue raised in ground 10, which is apparently misconceived.
Ground 11 is that the Tribunal completely ignored the sufferings of the applicant. However, the Tribunal’s role was to consider whether it was satisfied that the applicant met the criteria for the class of visa for which he applied. It carried out the review that it was required to carry out under the Migration Act and addressed the applicant’s claims in relation to his past sufferings, finding however that any harm that might befall him arose not for a Convention reason.
The general contention in ground 12 that the Tribunal committed jurisdictional error does not establish a jurisdictional error. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances and the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The first respondent seeks costs in the sum of $4,400. The applicant contends that this amount is too high. It is, however, at the lower end of the amount of costs that are normally awarded in matters of this nature which proceed to a final hearing and I consider it is an appropriate amount in light of the nature of this and other similar matters.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 October 2006
21
6
1