SZIQF v Minister for Immigration

[2007] FMCA 605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 605

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in India – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

S325/2005 v Refugee Review Tribunal [2005] FCA 125

First Applicant: SZIQF

Second Applicant: SZIQG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3518 of 2006

Judgment of: Driver FM

Hearing date: 20 April 2007

Delivered at: Sydney

Delivered on: 20 April 2007

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Court directs that the title of the first respondent be amended to “Minister for Immigration & Citizenship”.

2. The application is dismissed.

3. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3518 of 2006

SZIQF

First Applicant

SZIQG
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant to the applicants protection visas.  There are two applicants, a husband and wife from India. 

2. The Tribunal decision was handed down on 7 November 2006.  The applicants sought judicial review of the Tribunal decision by way of a show cause application filed on 28 November 2006.  In that application the applicants asserted actual notification of the Tribunal decision on 14 November 2006.  I find that the application to the Court was filed within time.

3. Background facts relating to the applicants' protection visa claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 16 April 2007.  I adopt as background for the purposes of this judgment paragraphs 2 to 14 of those written submissions:

   The applicants, who are husband and wife, are citizens of India.  On 12 August 2005, they arrived in Australia and on 22 September 2005, the applicants lodged an application for a protection (Class XA) visa (court book, “CB” 1).  The claims to refugee status were made by the husband as the principal applicant (CB 13).  The applicant wife did not advance any independent claims to refugee status, making her application as a member of the family unit (CB 27).

   In his protection visa application, the principal applicant claimed that he was an active member of the Bajanand Party, which he said was very similar to the Bharatiya Janata Party (BJP) and was in opposition to the ruling Congress Party.  The applicant claimed that since the Congress Party had taken power, his life had been extremely difficult.  Members of the Congress Party had attempted several times to kill him and some of his relatives (CB 19).  If he returned to India, the applicant claimed that he was “pretty much sure” that members of the Congress Party would again hurt him (CB 20). 

   On 30 November 2005, a delegate of the Minister refused the principal applicant’s application and, consequentially, that of his wife (CB 32; 41).  The delegate was not satisfied that the principal applicant was a person to whom Australia owed protection obligations, describing his claims as lacking relevant detail and substantiation (CB 41).  Further, the applicant remained living at the same address before he departed India, and continued to run his own business, which the delegate considered to be inconsistent with his claims of being harassed by Congress Party members (CB 41). 

   On 19 December 2005, the applicants, through a migration agent, lodged an application with the Tribunal for review of the delegate’s decision (CB 42). 

   On 14 March 2006, the Tribunal handed down its decision affirming the decision of the Minister’s delegate (CB 53). 

   On 6 April 2006, the applicants filed an application for judicial review with the Federal Magistrates Court.  On 22 May 2006, the Court made orders by consent remitting the matter to the Tribunal (CB 70, 137). 

   By letter dated 20 June 2006, the Tribunal invited the principal applicant to a hearing before it on 28 August 2006, sending the letter to the applicant’s migration agent as the authorised recipient (CB 73).  The applicant failed to attend the hearing; on the same day the migration agent faxed to the Tribunal a copy of a medical certificate in relation to the principal applicant (CB 81).

   The Tribunal issued two further hearing invitations to the principal applicant.  The Tribunal appears to have been concerned that the second invitation (CB 90) did not provide the correct notice period in circumstances where it was emailed to the migration agent and he subsequently objected to not having authorised receipt of documents by that means (CB 87-88). 

   On 28 September 2006, the Tribunal sent a letter by fax to the applicant, addressed to his migration agent, acknowledging the difficulties with sending the last hearing invitation by email and attaching a further invitation to the applicant to attend a hearing on 18 October 2006 (CB 93-95).  The applicant and his wife attended the hearing on that date and gave evidence (CB 130).

   On 7 November 2006, the Tribunal handed down its decision affirming the decision of the Minister’s delegate (CB 135). 

   In its reasons, the Tribunal set out a lengthy extract from the previous Tribunal’s decision record, in which the previous Tribunal summarised the applicant’s evidence at a hearing before it (CB 139-142).  The Tribunal noted that it had received a letter from the applicant’s migration agent dated 19 June 2006, in which he informed the Tribunal that (CB 142):

   I have been asked by the Applicant to advise the Tribunal that the Applicant stands by all his earlier submissions and claims.  In light of the Applicant’s decision, I now await further instructions from the Tribunal.

   Having given evidence at the hearing before it, a comprehensive account of which is included in the decision record, the Tribunal was not impressed with the principal applicant (CB 147):

   His responses were often weak, equivocal and vague.  When the Tribunal sought to explore with the Applicant why he thought members of the Congress Party would attempt to kill him the Applicant was vague and confused stating variously that he belonged to the opposing party, that it was because of religious differences and that in fact he was not sure and did not know why Congress Party people were endeavouring to harm him.  Whilst the Applicants have had recourse to a migration agent in the process of their review no written submissions were provided to the Tribunal that might throw light on the matter.

   The Tribunal found that “on the basis of the applicant’s oral evidence”, it was not satisfied that either the principal applicant or his wife faced harm on their return to India by reason of imputed political opinion (CB 147). 

   Turning then to the applicant’s evidence as to political skirmishes and clashes between Muslims and Hindus in Gujarat, the Tribunal referred to the country information it had set out earlier in its reasons which indicated that there were religious tensions in the state, and it accepted that the principal applicant may have at some point in time been involved in confrontations between Hindus and Muslims.  However, noting that the applicant was part of the Hindu majority, and that the ruling party in Gujarat was the BJP, the Tribunal found that “the Applicants would be able to avail themselves of adequate and effective state protection in the event that he or his family where (sic) to become embroiled in an outbreak of communal violence between Hindus and Muslims on their return to India” (CB 147).

4. I have before me a court book filed on 2 January 2007 as well as an affidavit by the first applicant filed with the application which I treated as a submission.  I gave the first applicant the opportunity to make oral submissions this afternoon but he did not wish to do so. The second applicant has not appeared.

5. There is no substance to any of the grounds of review.

6. It is plain from the reasons for decision of the Tribunal that, while it had regard to evidence presented to the Tribunal as previously constituted, it did not rely upon the reasoning of that earlier Tribunal. The Tribunal was under no obligation to disclose to the applicants country information referred to because of the operation of s.424A(3)(a) of the Migration Act 1958 (Cth) (“the Migration Act”).

7. The information provided by the applicants to the Tribunal for the purposes of the review including information they gave to the Tribunal as previously constituted was information falling within the purview of s.424A(3)(b) of the Migration Act. The Tribunal was in no doubt that the applicants would not be persecuted in India should they return there and in the circumstances there was no need for the Tribunal to consider relocation issues within India.

8. The balance of the application is simply an attack on the merits of the Tribunal decision. 

9. The Minister's submissions otherwise deal comprehensively with the grounds of review advanced by the applicants.  I agree with and adopt for the purposes of this judgment, with necessary amendments, paragraphs 15 to 25 of the written submissions:

   The applicants’ application for judicial review contains three numbered grounds of review, and two unnumbered grounds, which are numbered below as grounds 4 and 5.  The applicants have not provided any particulars in respect of the grounds of review. 

   Ground 1: “The Tribunal relied mostly on my previous RRT decision and did not consider case independently”

   In the affidavit of the principal applicant which accompanied the application, sworn on 28 November 2006, the applicant stated:

   1.The RRT relied on my past hearing and did not look at my matter independently.  The Federal Magistrates Court remitted my matter back to the Tribunal with a direction that my matter be looked at according to law.  The RRT failed to do so and generalised my claims and wrongly concluded that my claims were not Convention related.

   2.The RRT was influenced by the first decision record of my first hearing.…

   The Tribunal clearly considered the applicant’s claims independently of the previous Tribunal, but did so with the benefit of the evidence before that Tribunal.  The Tribunal was entitled to consider this evidence: S325/2005 v Refugee Review Tribunal [2005] FCA 125 at [28] per Wilcox J. Indeed, since the principal applicant “stood by” the claims and submissions made to the previous Tribunal, it was necessary for the reconstituted Tribunal to have regard to the evidence there given.

   The Tribunal conducted its own hearing, in the course of which the principal applicant stated that his circumstances remained the same as they had done when he appeared before the previous Tribunal (CB 142).  The Tribunal extensively questioned the principal applicant about the claims he made, asking him to elaborate on specific aspects, challenging the relationship between the events in which the applicant was allegedly involved and his alleged political affiliation, and putting to him that he could avail himself of state protection (CB 142-144).  The Tribunal’s conclusions as to the applicant’s claims to refugee status were made following this hearing, in circumstances where the Tribunal was not impressed with him as a witness and was not satisfied on his evidence that he would suffer harm as he had claimed. 

   Accordingly, the allegation that the Tribunal did not independently consider the claims of the principal applicant cannot be sustained, and this ground of review should be dismissed.

   Grounds 2 and 5: “The Tribunal was in breach of s.424A of the Migration Act as it failed to give information it relied on”; and “Tribunal did not give Independent Country Information”

   These grounds allege a failure on the part of the Tribunal to comply with s.424A of the Act, ground 2 in respect of unparticularised “information” and ground 5 in respect of country information. In the affidavit of the principal applicant accompanying the application, the applicant stated:

   The RRT also relied extensively on the Independent Country Information and did not inform me that it was going to use that information against me.  The RRT ought to have given me that information to comment on so that I could rebut their information and present arguments against it.

   The applicant’s allegation that the Tribunal failed to comply with s.424A in either of these two respects is misconceived. The Tribunal is not required to comply with s.424A(1) in circumstances where the information in question is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member” (s.424A(3)(a)) or is information “that the applicant gave for the purpose of the application” (s.424A(3)(b)).

   In this case, the Tribunal’s finding that the principal applicant did not have a well-founded fear of persecution was based on evidence given by the applicant at the hearing before it. That information was given by the applicant for the purpose of his review application and fell within the exception in s.424A(3)(b) of the Act. To the extent that the Tribunal considered country information, that information was not specifically about the applicant and thus fell within the exception in s.424A(3)(a) of the Act.

   These grounds of review should also be dismissed.

   Ground 3: “The Tribunal did not consider relocation issues and how this would affect applicant”

   The applicants’ allegation that the Tribunal did not consider relocation issues assumes that the Tribunal was bound to do so.  That assumption is misplaced.  Issues of relocation would only have arisen for consideration if the Tribunal had accepted that the applicant had a well-founded fear of persecution should he return to his home in Gujarat.  In circumstances where the Tribunal did not accept that the applicant had a well-founded fear of persecution, the question of whether or not the applicant could avoid that persecution if he relocated to another part of India simply did not arise.  This ground of appeal should be dismissed.

   Ground 4: “The Tribunal was wrong in concluding that the applicant’s claims were not convention related and was wrong in saying that applicant had state protection”

   The Tribunal’s conclusions that the applicants did not face harm on their return to India by reason of their imputed political opinion, and that they would be able to avail themselves of state protection in the event that they were to become involved in an outbreak of communal violence between Hindus and Muslims, were open to it on the evidence given by the principal applicant and its assessment of his credibility having given that evidence.  This ground of review constitutes an impermissible attempt to challenge those conclusions and it should be dismissed.

10. There is no jurisdictional error in the decision of the Tribunal.  It is therefore a privative clause decision and the application must be dismissed. 

11. I will also direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

12. Costs should follow the event in this matter.  The Minister seeks an order for costs fixed in the sum of $3,400.  The applicant indicated that he might need time to pay but did not otherwise wish to be heard on costs.  The amount sought by the Minister is significantly less than scale costs and I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party party basis.

13. I do have a concern about making a costs order against the second applicant who has not played any part in this proceeding and who did not sign the application to the Court.  I will order that the first applicant pay the costs and disbursements of the first respondent of and incidental to the application, which I fix in the sum of $3,400.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 April 2007