SZIWG v Minister for Immigration
[2007] FMCA 103
•6 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 103 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the Tribunal erred in finding that the applicant had not suffered “serious harm” in the past considered – inadequate consideration by the Tribunal of whether the applicant had suffered serious harm in the past or whether he had a well founded fear of future such harm – independent relocation finding supporting the decision – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| VBAO v The Minister for Immigration [2006] HCA 60 SZBWJ v Minister for Immigration [2006] FCAFC 13 SZEEU v Minister for Immigration (2006) 150 FCR 214 |
| Applicant: | SZIWG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1469 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 6 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2007 |
REPRESENTATION
The Applicant appeared in person
| Special Counsel for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the name of the first respondent be amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1469 of 2006
| SZIWG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 2 May 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. I adopt (with minor amendments) as background for the purposes of this judgment paragraph 2 through to paragraph 8 of the Minister’s written submissions filed on 1 February 2007.
Background
The applicant, a citizen of India, arrived in Australia on 22 October 2005 on a visitor visa [Relevant documents “RD” 12]. On 7 December 2005 the applicant lodged a protection visa application with the then Department of Immigration and Multicultural Affairs (“DIMA”) [RD 1-26]. The basis of the applicant’s claim to have a well founded fear of persecution for reason is summarised as follows [RD 23-32]:
a)the applicant was a member of the Indian National Lok Dal Party in the Kaithal District, Haryana State. At the time of the state elections in February 2005, the applicant was physically mistreated and threatened by supporters of the Congress Party. He was unsuccessful in his attempts to report those incidents to police;
b)the applicant moved from Kaithal to Chandigarh to stay with his cousin before leaving for Australia. The same supporters of the Congress Party harassed the applicant and his family. The applicant did not report those incidents to the police.
On 13 January 2006 the Minister’s delegate refused to grant the applicant a protection visa [RD 37-42]. On 10 February 2006 the applicant lodged an application for review in the Tribunal [RD 43 - 46]. On 22 March 2006 the applicant attended a hearing and gave evidence in support of his claims [RD 56]. On 5 April 2006 the Tribunal affirmed the decision under review, handing down its decision on
2 May 2006 [RD 59-73].
RRT decision
The Tribunal found that the applicant was not in genuine fear of persecution for a Convention reason. The Tribunal based its decision on the following findings:
a)the applicant was a truthful and credible witness, however the harm suffered by the applicant was not serious harm amounting to persecution [RD 71-72];
b)on the evidence before it, including independent country information, the Tribunal found that the chance of the applicant suffering serious harm should he return to Kaithal district in Haryana was remote [RD 71-72]; and
c)based on the applicant’s evidence at hearing, the applicant lived in various states in India prior to travelling to Australia, without harassment or harm. Accordingly, it was reasonable for the applicant to relocate to a larger city in India should he wish to remove himself from his political adversaries in Haryana [RD 72].
Application
On 22 May 2006, the applicant filed an Application for review of the Tribunal’s decision under Rule 44.05 of the Federal Magistrates Court Rules 2001.
On 21 August 2006, the Court made orders in relation to that application, as follows:
The first respondent is ordered to show cause pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) why relief should not be granted in respect of the application filed on 22 May 2006 as if the grounds of review contained the particular that the Refugee Review Tribunal committed jurisdictional error in finding that the harm that the applicant suffered in February 2005, the facts of which were apparently accepted, did not amount to serious harm for the purposes of s.91R(1)(b) of the Migration Act 1958 (Cth).
At that time, the Court also made orders that:
The applicant is to file and serve on the respondents any amended application or any further affidavit evidence no later than 30 November 2006.
The applicant is to file and serve on the respondents an outline of written submissions not less than 14 days before the final hearing date.
No amended application has been filed.
I note that the applicant’s judicial review application is supported by a short affidavit also filed on 22 May 2006 in which he refers to his fear of persecution. The applicant also deals with factual issues relevant to a consideration of his claim of persecution in a statutory declaration made on 30 November 2006. The applicant claims that he filed that in the registry as a submission, but there is no record of it. I gave leave to the applicant to file the statutory declaration in court today. I accepted it as a submission.
As already noted, the issue identified by me as meriting a final hearing at the show cause hearing conducted on 21 August 2006 is whether the Tribunal erred in finding that the harm suffered by the applicant in February 2005, the facts of which were accepted, did not amount to serious harm for the purposes of s.91R(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister’s submissions in relation to that issue are set out in paragraphs 9 through to 15 of the outline. I incorporate (with minor amendments) those paragraphs in this judgment. Ms Watson also made oral submissions this afternoon which addressed those submissions.
Submissions
The Court indicated that it would be assisted by submissions from the parties regarding whether the Tribunal committed jurisdictional error in finding that the harm suffered by the applicant in February 2005, did not amount to serious harm for the purposes of s.91R(1)(b) of the Migration Act 1958 (Cth).
The Minister submits as follows:
a)without being an exhaustive definition of serious harm, “instances” of serious harm for the purposes of s.91R(1)(b) are set out at s.91R(2) of the Act. Those instances are discussed in the joint judgment of Gleeson CJ and Kirby J in VBAO v Minister for Immigration [2006] HCA 60 (14 December 2006) per Gleeson CJ and Kirby J at [1] to [3];
b)in the present case, the RRT outlines ss.91R(1) and 91R(2) under the heading ‘Definition of Refugee”’. Under its heading ‘Findings and Reasons’, the Tribunal accepted the applicant’s evidence regarding the incidents that occurred in February 2005, in particular:
i)at the time of the polling in February 2005, that the applicant was harassed by supporters of the winning candidate [RD 71]; and
ii)on the day of polling, the applicant was removed from the polling booth by these people and taken to a place some sixty kilometres distant, that he was mistreated but allowed to escape [RD 71].
c)However the Tribunal was not satisfied that such incidents amounted to serious harm.
d)The Tribunal concluded that:
“on the basis of the evidence before it that the applicant, whilst he has been harassed and threatened by his political adversaries in the past, immediately after the state elections in February 2005 has not suffered serious harm such that it amounts to persecution. It concludes that the chance is remote that he will suffer such harm in the future if he returns to his district in Kaithal and to in Haryana.” [Emphasis added]
e)In light of the above, the Minister submits that the Tribunal correctly understood and applied s.91R(1)(b), and considered the real chance of the applicant facing serious harm in the future: VBAO v Minister for Immigration [2006] HCA 60 at [3]. The Tribunal did not confine itself to the examples in s.91R(2), nor did it fail to consider all relevant claims or the cumulative effect of those claims: VTAO v Minister for Immigration [2004] FCA 927 at [62]. Accordingly, the Minister submits that the RRT’s factual findings in question were open to it on the evidence, and in any event, the Tribunal made an alternative finding, that in all the circumstances it would be reasonable to expect the applicant to relocate to other parts of India, should he wish to remove himself from his political adversaries in Haryana. This is an independent reason for concluding that Australia does not owe protection obligations to the applicant so as to entitle him to the grant of a Protection visa: SZBWJ v Minister for Immigration [2006] FCAFC 13 at [53].
The applicant’s submissions were to the effect that the Tribunal, on the basis of the factual claims which it accepted, should have found that he had been persecuted in the past and faced a well founded fear of future persecution.
Reasoning
I remain concerned about the Tribunal’s consideration of the issue of whether the applicant was exposed to a risk of serious harm. The Tribunal accepted the applicant’s factual claims, which included claims that on the day of the election in February 2005 he had been struck on the head, abducted and dumped approximately 60 kilometres away. His injuries required medical attention. He was also struck on a second occasion when he was slapped. There were later verbal threats. As noted in the Minister’s written submissions, the High Court has recently dealt with the issue of verbal threats in VBAO v The Minister for Immigration [2006] HCA 60. In that case, at [1] to [3], Gleeson CJ and Kirby J found that a threat can mean the communication or likelihood of harm and that past communication of an intention to harm may or may not be evidence of the likelihood of a current threat and that it is for the decision-maker to decide whether there is such a likelihood. At [18], Gummow J considered what constitutes “serious harm”. His Honour said:
Counsel for the appellant urged a reading of par (a) of s 91R(2) which would include a past or current communication of an intention to kill or deprive a person of liberty which, looked at objectively, is capable of instilling fear in the person and does so. The Minister supports the construction adopted by Marshall J, in particular that (i) threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve, (ii) the term "threat" connotes "risk" in the sense of danger or hazard, and (iii) the threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger. The submissions for the Minister should be accepted.
Callinan and Heydon JJ at [50] also considered the construction of s.91R(2) and concluded that a verbal threat must be current or prospective in order to constitute persecution.
In this case the applicant was subjected not only to verbal threats, but also to two incidents of battery, the first of which was serious, and deprivation of liberty, albeit for a relatively short time. I cannot understand how the presiding member concluded that the first attack on the applicant, the facts of which she accepted, did not amount to serious harm. It is apparent from reading the applicant’s claims as a whole that the purpose of the action taken against the applicant was to prevent him from dealing with what he perceived to be electoral fraud. The verbal threats which followed the physical attack on and abduction of the applicant presumably served to reinforce the fear in him of future such attacks if he interfered again. There was no consideration by the presiding member of the likelihood of such an attack occurring again at a subsequent election. The presiding member noted that the verbal threats made subsequent to the physical attacks were not followed up. However, in the context in which the physical attacks occurred they did not need to be. The election was over and another election would not occur for a number of years. The applicant told me that elections are held every five years. There was no consideration by the Tribunal of the likelihood of the applicant being attacked again should he participate in a subsequent election and seek to prevent electoral fraud as he had apparently detected on polling day in February 2005.
In my view, the consideration by the Tribunal of the question of whether the applicant had suffered serious harm in the light of past events, and whether he would suffer such harm in the future, was inadequate. Nevertheless, I accept that the Tribunal decision is supported independently by the finding that the applicant could relocate; that finding is dealt with on page 72 of the court book. There was discussion about that issue with the applicant at the hearing conducted by the Tribunal. That discussion is set out on page 70 of the court book. The presiding member records what she said but does not record anything being said by the applicant on that issue. It does not appear that the Tribunal was on notice of anything which might prevent the applicant relocating. As is apparent from the last paragraph on page 70 of the court book, the Tribunal was also aware of other steps the applicant could have taken to access state protection. Whatever view one takes of the adequacy of the Tribunal’s examination of the applicant’s claims, the claimed harm was clearly locally based. The Tribunal had information before it of state protection being available both at the State (and by logical extension national) level, although at the local level there appeared to have been a failure of state protection. I find that it was open to the Tribunal to conclude that the applicant could access state protection through relocation. That finding independently supports the Tribunal decision[1]. Therefore, notwithstanding the unsatisfactory approach by the Tribunal to the issue of whether the applicant had a well-founded fear of persecution by reason of the factual events which were accepted, the judicial review application should be dismissed. I will so order.
[1] SZBWJ v Minister for Immigration [2006] FCAFC 13; SZEEU v Minister for Immigration (2006) 150 FCR 214 at [232]–[233]
Costs should follow the event in this case. The application has been dismissed and the Minister should receive his costs. The Minister’s actual costs I am told exceed $5,000. The Minister seeks an order for costs fixed in the sum of $4,500. The applicant indicated he would wish to pay by instalments, but did not otherwise wish to be heard on costs. I accept that costs of $4,500 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that sum.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 February 2007
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