SZHRW v Minister for Immigration
[2007] FMCA 673
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRW & ANOR | [2007] FMCA |
| MIGRATION – Review of Refugee Review Tribunal decision – whether decision of Tribunal made in good faith – whether Tribunal erred in law in interpreting s.91R Migration Act 1958 – whether Tribunal made mistake of fact – whether mistake of fact amounted to jurisdictional error. |
| Migration Act 1958, ss.91R, 422B Federal Court Rules, O.54B r.2 |
| NABE V Minister for Immigration (No 2) [2004] FCAFC 2623 |
| Applicants: | SZHRW, SZHRX |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3502 of |
| Judgment of: | Raphael |
| Hearing date: | 19 April 2007 |
| Date of last submission: | 19 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2007 |
REPRESENTATION
| |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application is dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2750.00.
The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3502 of 2005
| SZHRW, SZHRX |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
The applicants are husband and wife who are citizens of India. The male applicant travelled from Gujarat to Australia in May 2005 and his wife joined him in Australia on 4 June 2005. On 6 June 2005 they lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
On 12 July 2005 a delegate of the Minister refused to grant protection visas and on 3 August 2005 the applicants applied for a review of that decision. The Tribunal held a hearing which was attended by the male applicant and on 12 October 2005 determined to affirm the decision under the review. The Tribunal handed down that decision on
3 November 2005.
Only the male applicant is present before me today and, as the Tribunal remarked, there were no separate claims made by the female applicant who appears to base her right to the protection of Australia upon her relationship with her husband.
The applicant told the Tribunal that he had been a BJP activist in his home State of Gujarat and in the town of Ahmedabad and had become involved in the political conflict between two BJP leaders, a Mr Modi and a Mr Patel. After some alleged threats upon his life from the BJP he ceased supporting that party and turned, instead, to the BD or Bajrangdal which is the youth wing of the BHP and part of a family of organisations promoting Hindu nationalism.
The applicant told the Tribunal that he suffered some harassment from BJP members in early 2005. The Tribunal questioned him about this and also spoke to him in some detail about the possibility of his relocating either within the State of Gujarat or to another city in India which has a large Gujarati population, such as Mumbai. In its findings and reasons the Tribunal said:
“The Tribunal does not accept on the evidence before it that ordinary members or former members of the BJP are at risk of persecution in Gujarat for that reason [the ascendance of the Congress Party] (or because they supported one or other of the party rivals in internal party disputes), whether from other BJP members or Congress or the police or Muslims or others. Nor does the Tribunal accept on the evidence before it that ordinary members of the BD in Gujarat are at risk of persecution for that reason, whether from BJP members or Congress or the police or Muslims or others.
However, the Tribunal does accept that as a result of local antagonisms and disputes involving local party supporters in his particular area, the applicant has been subjected to some degree of harassment there by particular individuals. However, the Tribunal is not satisfied that the harassment described amounts to persecution for a Convention reason. In any event, the Tribunal does not accept that this translates to a broader risk to the applicant if he lives and works somewhere other than his own particular area.”
It will be seen that there are two grounds upon which the Tribunal has rejected this application. The first, and I believe most important, is that the Tribunal was obviously not satisfied that the harassment suffered constituted persecution as that is defined in s.91R of the Migration Act 1958 (Cth) (“the Act”) and it is only upon the satisfaction to that level that the Act permits the Minister to grant a visa.
The second ground upon which the Tribunal rejected the application was that the applicant was capable of internal relocation. In coming to that conclusion the Tribunal utilised a certain amount of independent country information concerning the spread of BHP governments and supporters within India and the places in which there were a significant number of persons from the State of Gujarat who could be expected to speak Gujarati and with whom the applicant could be expected to associate. The Tribunal also used the information that the applicant had professional skills and business experience which it obtained, presumably, from this discussions with him although I do not have a transcript. The Tribunal also noted that the applicant had shown a willingness and ability to travel far from home and live in a country where he does not speak the language. It seems to me that this is not information so much as a fact that is self-evident from the applicant’s appearance before the Tribunal.
In his helpful written submissions Mr Leerdam, who appears on behalf of the Minister, has pointed out that the RRT decision record indicates that it discussed with the applicant his experiences, circumstances and concerns at [CB75], that at [CB76] the applicant indicated that he had closed his business down and that the Tribunal at [CB76]-[77] discussed in some detail with him the possibility of relocation. I am satisfied that any “information” in this regard was information provided by the applicant to the Tribunal. I notice this information only concerns a question of relocation. It does not seem to me to be a matter upon which I need opine because of the first finding by the Tribunal in relation to persecution.
In his application filed in this Court on 30 November 2005 the applicant indicates four grounds upon which he believes that the Tribunal fell into jurisdictional error. The first is that the decision did not reflect that it was made in good faith and according to the rules of natural justice. The applicant does not particularise that statement and to the extent that it appears to be alleging bias on the part of the Tribunal has failed to provide the particulars that are required under Order 54B, rule 2 of the Federal Court Rules. The rules of natural justice are, of course, somewhat constrained in these cases by the application of s.422B of the Act and if the applicant is not prepared to particularise the alleged failing it is not for the Court to trawl through every possible breach that might be revealed on a very close look at the decision itself.
The second matter raised by the applicant is that the Tribunal used the wrong tools of explanation for the definition of refugees under the meaning of UN conventions and protocols and Australian common law. Regrettably, this allegation is also unparticularised but I would hazard a guess that the applicant is referring to the section in the Tribunal’s decision described as Definition of “Refugee.” This section which appears in all Tribunal decisions has withstood the test not only of time but of all the Courts that have been dealing with this type of application for some large number of years. Without the assistance of the applicant I am unable to see in what way it misinterprets the Convention, the legislation, or, so far as it is relevant, the common law.
The next point raised by the applicant is that the Tribunal erred in law in interpreting the meaning of well founded fear of persecution within the meaning of s.91R of the Act. I am not sure if this is an attack upon the constitutional validity of s.91R or whether the applicant is under the misapprehension that a treaty entered into by the Commonwealth of Australia becomes the domestic law of this country but, even if that was the case, a later gloss upon the definition of refugee produced by s.91R would always take precedence over an earlier statutory definition.
Finally, the applicant states that the Tribunal erred in law because it did not review the information the applicant provided in writing. As Mr Leerdam points out the applicant did not actually provide any information in writing other than what was contained in his application for a protection visa. This information was considered by the Tribunal [CB74]-[75].
Before me today the applicant stated that the Tribunal had made some mistakes of fact in relation to the discussion of the BP hierarchy, the dispute within it and the name of the chief minister of Gujarat. I am unclear as to whether this is correct or not. But if the Tribunal did make a mistake of fact then this would not, in most cases, constitute a jurisdictional error. As the Full Bench of Black CJ, French and Selway JJ said in NABE v Minister for Immigration (No 2) [2004] FCAFC 2623 at [53]:
“It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision … [a]n error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact”.
The applicant also told me that was unable to relocate but in so doing he was in effect requesting me to enter into impermissible merits review.
Having considered the decision of the Tribunal I am unable to find that it fell into jurisdictional error in the manner in which it decided that the applicant was not a person to whom Australia owed protection obligations. I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $2,750.00. I order that the name of the First Respondent be amended to “Minister of Immigration and Citizenship”.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 June 2007
CORRECTIONS
Page 1 – insert “, SZHRX” after “SZHRW”.
Page 1 – delete “SYG3502/2006” insert “SYG3502 of 2005”.
Page 2 – insert “DLA” before “Phillips Fox”.
Paragraph 6 line 4 – insert “1958 (Cth) (“the Act”) after “Migration Act”.
Paragraph 9 line 10 – delete “Migration” after “s.422B of the”.
Paragraph 11 line 3 – delete “Migration” after “s.91R of the”.
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