SZJDD v Minister for Immigration
[2006] FMCA 1655
•30 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1655 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is citizen of India of Gorkha ethnicity – applicant speaks English but very little Hindi – relocation considered – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.476 |
| Randhawa v Minister for Immigration and Local Government and Ethnic Affairs [1994] 52 FCR 437 |
| Applicant: | SZJDD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2117of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 October 2006 |
| Date of last submission: | 30 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,500.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2117 of 2006
| SZJDD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 27th June 2006 and handed down on 18th July. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
Background
The Applicant is a citizen of India, who arrived in Australia on 9th February 1998. He applied for Protection (Class XA) visa on
10th April 2006. A Delegate of the Minister refused to grant that visa on 21st April. The Applicant then sought a review of the Delegate's decision by means of an application lodged at the Sydney Registry of the Refugee Review Tribunal on 28th April 2006. The Applicant was then, and still is, in Immigration Detention.
In the application for review, which was lodged by the Refugee Advice and Casework Service, the Applicant sought a review of the Delegate's decision. The Applicant did not at that stage provide any other material to the Tribunal, but did so subsequently. The Tribunal wrote to the Applicant's advisor on 15th May inviting the Applicant to attend a hearing of the Tribunal.
The Refugee Advice and Casework Service provided to the Tribunal an extensive submission setting out the Applicant's claim. A copy of that document appears at pages 111 through to 124 of the Court Book. Apart from setting out the Applicant's history, the submission made the point that the Applicant had a well-founded fear of being persecuted for one of three reasons. First, his imputed political opinion or his ethnicity or a combination of the above. The submission drew the Tribunal's attention to the political prominence of the Applicant's father in Manipur in India and the Applicant's father's consistent advocacy for equal rights for the Gorkhali people, of whom the Applicant and his father are members.
The submission pointed out that there had been various unpleasant incidents and threats of persecution from rebel groups in the state of Manipur against the Applicant's family, on account both of their ethnicity and the Applicant's father's profile. The submission referred to the Applicant's well founded fear of persecution. The submission provided a considerable amount of country information in support of that claim. Apart from fear of persecution from the state, the Applicant claims a well founded fear of persecution from rebel groups.
The submission did, at page 121, refer to the question of relocation. The submission referred to the difficulty faced by Gorkhali people in Manipur, being people of a Nepalese background. They faced discrimination and there are language difficulties, which, it is submitted, would make relocation within India so difficult as not to be reasonable. In particular, the submission pointed out at page 124 that the Applicant cannot speak, read, write or understand Hindi in a comprehensive manner.
He would find it difficult to settle in another part of India, as he shows distinguishable facial features which identify him as Gorkhali.
The submission concluded by putting to the Tribunal that the Applicant's father's active political profile and activities with various political parties in Manipur would place the applicant in grave danger if he were to return to Manipur at this time.
The Applicant attended a hearing of the Tribunal and gave evidence. The Refugee Advice and Casework Service, showing a commendable degree of enterprise on behalf of the Applicant, submitted a post hearing submission to the Tribunal on 15th June 2006. A copy of that post hearing submission can be found at pages 128 through to 134 of the Court Book. The submission refers at page 128 and 129 to four issues which are identified by the Tribunal at the hearing. In summary they are as follows:
i)whether rebel groups in Manipur have acted in an indiscriminate manner or have acted to specifically target political opponents such as the Applicant's father and his family;
ii)the absence of independent country information reporting on the persecution of Gorkhalis in Manipur and elsewhere in India;
iii)whether the Applicant's father and his family would be able to access state protection; and
iv)whether relocation was a viable option which would be reasonable for the Applicant in the circumstances.
The submission addressed those issues and again referred to a significant amount of country information from the Centre for Peace and Conflict Studies and the Asian Human Rights Commission and other organisations.
The Tribunal's decision can be found at pages 142 through to 157 of the Court Book. In that decision the Tribunal considered the Applicant's claims and evidence, including the Applicant's evidence at the hearing, and that material commences at page 145 of the Court Book and goes through to page 153. Included within that section is a reference to independent evidence by way of country information and there are references on pages 150 to 153 to various items of information that appear on relevant websites on the internet.
The Tribunal’s Findings and Reasons
The Tribunal set out its findings and reasons and a copy of those can be found within the decision at pages 153 to 157 of the Court Book.
The Tribunal noted that there were some discrepancies between the Applicant's claims in his protection visa application and the oral evidence that he provided to the Tribunal at the hearing. The Tribunal stated, however, that it was prepared to give the Applicant the benefit of the doubt as far as that was concerned and did not draw any adverse inference from the inconsistencies between the Applicant's written claims and his oral evidence. The Tribunal noted that the Applicant's case was based on the Convention grounds of ethnicity, imputed political opinion and particular social group.
The Tribunal noted the Applicant's fear of returning to Manipur for the reason of his Gorkha ethnicity and his father's political profile and activities. The Tribunal then set out the fact that it accepted that he was a national of India and of Gorkha ethnicity and was prepared to accept that there was an anti-Nepali demonstration in the 1980s, during the course of which stones were thrown at the Applicant's house. The Tribunal referred to the Applicant's claims that shots had regularly been fired over the house and referred to the Applicant's experiences and feelings of isolation and not being liked at university for reason of his ethnicity.
The Tribunal noted that it had repeatedly put to the Applicant at the hearing that an examination of independent sources available to the Tribunal did not in any way suggest that Gorkhas in Manipur, or anywhere else in India, were suffering persecution for the reason of their ethnicity by the rebels, the authorities or the security forces. The Tribunal did consider it reasonable that if Gorkhas were being seriously mistreated in India because of their ethnicity or national origin, that that would have been reported by the press or by one of the many non-government organisations operating in the area.
The Tribunal did accept that the Applicant's father's vehicle had been seized by a rebel group in 1994 and that the father had been extorted for money. The Tribunal noted, however, that that situation occurred widely and indiscriminately. The Tribunal went so far as to say that it was satisfied the Applicant had not suffered harm for the reason of his ethnicity in the past; there was no real chance that he would suffer persecution by the rebels, the government forces or anyone else for that reason in the reasonably foreseeable future. The Tribunal was not satisfied that poverty was unique to Gorkhas in India and did not accept that, bearing in mind the Applicant's individual circumstances, including his level of education and family background and socio-economic position, that the Applicant would not face significant economic hardship for reason of his ethnicity if he were to return to India.
The Tribunal specifically noted at page 155 that it had carefully considered the news items and extracts from articles submitted by the Applicant's advisor, being the Refugee Advice and Casework Service. The Tribunal conceded that that material indicates that the Indian Nepalese community has been subjected to anti-foreigner sentiments in India from time to time, but there was nothing in the information provided by the advisor to suggest that Nepalese in Manipur are being persecuted by the government or by rebels or by any other group.
The Tribunal considered that the Applicant's account of incidents of harm suffered by the Applicant's father for the reason of his political activities and profiles were vague and lacking in detail, and noted that the Applicant had claimed that his father was assaulted on a number of occasions in the past but was unable to describe any of those incidents, except one that had occurred in the 1980s.
The Tribunal noted that the evidence submitted on behalf of the Applicant suggested that those people targeted by the rebels are senior government officials and government employees and considered that the Applicant's father's political history and profile did not suggest anything that would make him a target of rebels beyond their perception that he was in a financial position to make payments.
The Tribunal took the view that it was not satisfied that there was a real chance that the Applicant would be harmed as a member of a particular social group: be it his family; a child of a government official; a child of a particular activist; or any other group.
Whilst considering that in view of those findings it was not necessary to consider any issue of relocation, the Tribunal did give that issue some consideration and noted that if the Applicant remained fearful of returning to Manipur, the Tribunal was satisfied that it was reasonable for the Applicant to relocate to a different part of India. The Tribunal referred to the leading case of Randhawa v Minister for Immigration and Local Government and Ethnic Affairs [1994] 52 FCR 437 in the judgment of Black CJ at 440 and 441. The Tribunal was not satisfied that the Applicant could not reasonably relocate within India.
The Tribunal took the view that India was a culturally diverse country where many different groups live and are living side by side. The Tribunal considered that the Applicant was clearly able to adapt to new environments, having lived in Australia for eight years.
The Tribunal noted the Applicant's claim of language difficulties and accepted that Hindi language skills could be of use to the Applicant, but did not accept that lack of Hindi language skills or one of the state languages alone would make it unreasonable for the Applicant to relocate. The Tribunal noted that the Applicant spoke English, which is widely spoken in India and indeed is an official language of central and state government.
The Tribunal noted that in terms of English speakers, the Indian subcontinent ranks third in the world after the United States of America and the United Kingdom. The Tribunal noted that English is a main language in both Delhi and Goa and considered it would be reasonable for the Applicant to relocate to either of those two locations if he did not consider that he could live in safety for Manipur.
All in all the Tribunal was not satisfied that the Applicant had a well founded fear of persecution in India for reasons of ethnicity or imputed political opinion, membership of a particular social group or any other Convention reason. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention and did not, therefore, satisfy the criterion set out in s.36(3) for a protection visa.
It is for those reasons that the Tribunal affirmed the Delegate's decision not to grant the Applicant a protection visa.
The Application for Judicial Review
The Applicant sought review of that decision from this Court by means of an application filed on 1st August 2006. He sought originally an adjournment so that he may obtain some legal advice and, whilst he followed certain avenues, in the end he was unable to secure legal representation. The Applicant then appeared, still in detention, at the hearing in this Court.
The Applicant sets out three grounds upon which he bases his application for relief:
i)the Tribunal made a jurisdictional error in its decision;
ii)the Tribunal made a jurisdictional error in its finding; and
iii)the Tribunal failed to take a relevant consideration into account in exercising its power to determine the Applicant is a refugee.
In his application, the Applicant seeks an order in the nature certiorari quashing the decision of the Tribunal and noted that the Tribunal Member refused to accept that the Applicant had a well-founded fear of persecution for Convention reasons. The Applicant did not file a written outline of submissions but did make oral submissions to the Court. He did not require the use of an interpreter and indeed he speaks good and fluent English.
His claims were largely based on factual issues and indeed he made a challenge to the Tribunal's findings about the reasonableness of relocation. He was of the view that the Tribunal had not given consideration to the language difficulty that he would face if he did relocate to somewhere else in India, referring specifically to Delhi and Goa, which had been referred to by the Tribunal. He maintained his view that without proficiency in the Hindi language his employment opportunities would be significantly limited, notwithstanding the fact that he is a well-educated man who speaks good English.
The lawyers for the First Respondent filed an outline of written submissions and in those submissions commented that the Applicant had made a broad assertion of jurisdictional error and had not identified the aspects of the Tribunal's reasoning that was said to be flawed.
The submission was made that the Applicant was unsuccessful in his hearing before the Tribunal for essentially factual reasons and' while the Tribunal had accepted the essential elements of the Applicant's claims about his own background, it did not agree that the factors that he had identified, being his ethnicity and his father's political profile, gave rise to a real chance of harm in the foreseeable future.
Counsel for the Respondent Minister, Mr Kennett, submitted that the Tribunal's assessment of the lack of a real chance of harm in the foreseeable future was based on the Applicant's evidence and the available country information and was, therefore, an assessment that was open to the Tribunal on the evidence.
The submission also noted that in one respect the Tribunal's reasoning arguably relied on a characterisation of certain harm as not being Convention related, noting that the Tribunal appeared to accept that the Applicant's father had suffered extortion in 1994. The Tribunal, in
Mr Kennett's submission, asked itself the question whether the reason for that incident might have been the father's political history and profile and, at least implicitly, answered that question in the negative. The Tribunal had noticed independent evidence that rebel groups extorted money widely and largely indiscriminately, choosing their targets or victims on the basis of a likely ability to pay. The Tribunal was not satisfied that rebels would impute any profile or opinion to the applicant because of his father's profile and it is submitted that no error can be seen in that analysis.
Mr Kennett submitted that even if there were some relevant error in the Tribunal's conclusions, which was not conceded, as to the likelihood of the Applicant suffering Convention related harm, the Tribunal's findings on relocation would provide a complete answer in themselves to the Applicant's claim. He submitted that the application should be dismissed with costs.
I have considered the Applicant's claims and I have read through the decision myself. I am mindful of the fact that whilst the Applicant had the opportunity to access advice from a Panel Adviser under the Refugee Review Tribunal Legal Advice Scheme, he did not have legal representation at a hearing, which was a matter that he wished to obtain and indeed made some efforts to obtain. That is an unfortunate situation for the Applicant but, regrettably, not an uncommon situation for applicants in this jurisdiction. In my view, the Tribunal's decision is based largely on its factual findings of the Applicant's evidence, including the Applicant's oral evidence to the Tribunal hearing. It is not a function of a court, on judicial review, to consider the facts and then substitute its own conclusions, on a factual basis arising out of the evidence, for that of the Tribunal.
It is not relevant if the Tribunal's conclusions on the evidence do not coincide with a conclusion that the Court would have reached if the Court had been hearing this matter on a factual basis, because the Court does not conduct what is known as merits review. That fact finding and drawing conclusions from the facts is solely a function for the Tribunal, so long as there is evidence upon which those findings can be made. In my view there is the evidence, and even though the Court may have taken a different view, at least in relative terms, to some of the conclusions reached by the Tribunal, that does not mean that the Tribunal fell into jurisdictional error.
The Tribunal did consider the question of relocation, even though it had not found that the Applicant was likely to suffer a reasonable fear of persecution, and a well founded one for a Convention reason, in India. Nevertheless, the Tribunal considered the situation of whether the Applicant could relocate in safety and it was reasonable for him to do so within India if there was a fear of persecution for a Convention reason that was well founded in the area from which he came.
The Tribunal conceded, as did Counsel for the Respondent, that the situation in Manipur is not a happy or stable situation. Nevertheless, it was not a situation as such that would necessarily give rise to a well founded fear of persecution for a Convention reason.
The Applicant made specific submissions relating to the reasonableness of relocation and, in my view, the language issue which he raised is of itself a telling point. However, it is not open to the Court to make its own finding on the evidence of relocation, because that is an issue that is purely for the Tribunal so long as there is evidence upon which that finding could be made, and in this case there was.
It follows then that, whilst I have read through the Tribunal decision and the supporting material very thoroughly because I am mindful of the fact that the Applicant is not legally represented in these proceedings, no jurisdictional error has been disclosed; and as there is no jurisdictional error, the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under s.474(1) a privative clause decision is final and conclusive and is not subject to an order in the nature of certiorari or any other of the constitutional writs.
It is, of course, open to the Applicant after the dismissal of his application, and regrettably there is no option in my view but to dismiss the application, to pursue his rights of appeal in another place. That is, of course, entirely a matter for him. Once the Applicant's claims insofar as the judicial system are concerned have been exhausted, this is a matter where, in my view, the applicant may well consider bringing an application to the Minister for a discretionary intervention and the imposition of a more favourable decision under the provisions of s.417 of the Migration Act.
The Applicant is a personable and intelligent man, who speaks good English and certainly, in my view, possesses a subjective fear of persecution if he returned to India. In my view the fears that he has about relocation and the unreasonableness, in his view, of relocation in another part of India, are real fears and real concerns. However, the exercise by the Minister of her discretion under the Act is not a matter upon which the Court can make any finding or attempt to bind the Minister in any way. It is, however, my view that the Applicant should be made aware that at the conclusion of legal proceedings such a course is one to which he may want to give some consideration. I am mindful of the fact that he is in Immigration Detention and does not have the same degree of access to legal or other advice that a person free in the community might have; however, the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. In this jurisdiction costs follow the event and there is no reason not to make an order for costs. I note the application was adjourned at the request of the Applicant so that he could follow a legitimate interest in obtaining legal representation. The costs figure that is put to me of $5,500.00 includes costs of the previous occasion and in my view it is not unreasonable. At the same time, as the Applicant has pointed out, he has been in detention for the last six months or so and is not in a position to meet any of those costs at all.
I accept that that is so and it is almost unrealistic to consider the payment of legal costs, certainly in the near future.
Inability to pay is not a reason of itself for not making an order for costs, but it is a matter to be taken into account as far as time to pay is concerned. I propose to order the Applicant to pay the First Respondent's costs, fixed in the sum of $5,500.00, but in the circumstances of this case I do not believe that it is unreasonable to allow up to 12 months to pay and I do so.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 November 2006
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