SZJEG v Minister for Immigration - [2007] FMCA 1542

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1542

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A, 476
Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12

Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081
NABE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No.2) (2004) 144 FCR 1
Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473

Applicant:

SZJEG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2173 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

4 July 2007

Delivered at:

Sydney

Delivered on:

10 September 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of Hindi interpreter

Counsel for the Respondent:

Ms V McWilliam

Solicitors for the Respondent:

Clayton Utz

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 8 August 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2173/06

SZJEG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJEG”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 August 2006 for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 30 June 2006 and the applicant was advised by letter on 20 July 2006. The Tribunal decision affirmed a decision of the delegate of the first respondent made on 3 April 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks and order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondents' solicitors was filed on 22 September 2006. I have marked it Exhibit "A" and it was read into evidence.

Background

The Tribunal decision of S Roushan, reference 060376133, provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 9 January 2006 and applied to the Department of Immigration & Multicultural Affairs for a protection (class XA) visa on 21 February 2006. A delegate decided to refuse to grant a visa and on notification of the applicant of the decision and his review rights by letter dated 3 April 2006 and posted on the same day. The applicant applied to the Tribunal on 21 April 2006 for a review of the delegate's decision.(CB 77)
The Tribunal decision contains the following information in respect of the applicant's claims under the heading "Claims and Evidence":
The applicant claims that he left India because his life was in great danger. He is a Muslim and a member of the party called "Muslim League". He is afraid because many of his Muslim brothers have been killed, assassinated and tortured because of their religion. He was an active member of the Muslim League since his teens which made him a prime target of the Shiv Sena and a "few others" Hindu extremist parties. His opponents are motivated to find him anywhere in India.
He lived in Mumbai all his life and was not able to move permanently to another location. He has tried to relocate but always fell victim of people who tried to hurt him. As a religious man he would be unable to suppress his beliefs and democratic views.(CB 79)
The written submissions prepared by Ms McWilliam, counsel for the first respondent, provides a summary of the Tribunal decision. I adopt paragraphs 3 to 7 of those submissions:
(3) The Tribunal accepted the applicant's claim that he was in a position during the 1992/3 riots in Mumbai where the applicant could have potentially been assaulted by six or seven machete wielding Hindus, that Hindus visited his house on three or four occasions between 1996 and 2004, and that the applicant was a member of the Muslim League.
(4) However, relying on independent country information, the Tribunal found that:
(a) relations between religious groups are for the most part amicable;
(b) there was no information suggesting that Muslims in Mumbai or Maharashtra had been systematically targeted by the Hindu majority;
(c) the chance that in a reasonably foreseeable future the applicant will be involved in violence motivated by religious difference and seriously harmed as a result, is remote.
(5)In relation to the visits to the applicant's house, the Tribunal found that the threats did not fall within s.91R(1)(b) of the Act that if the individuals had seriously intended to act upon their threats, they had ample opportunity to do so in the past 10 years.
(6) In relation to the applicant's membership of the Muslim League, the Tribunal found that the applicant had no positions in the party, had a limited role as a volunteer and stopped being a member altogether in 2000. The Tribunal did not accept that the applicant's association with the Muslim League, his profile and activities gave rise to a real chance of persecution if the applicant were to return to India and reside in Mumbai in the reasonably foreseeable future.
(7) For the sake of completeness, the Tribunal made a relocation finding, stating that on the applicant's own evidence, the applicant's problems and activities were highly localised and confined to his locality in the surrounding area, and that the applicant had provided no acceptable reason as to why he was unable to relocate internally. The Tribunal was therefore satisfied that it would be reasonable for the applicant to relocate to a different part of India if he wished to avoid the possibility of further conflict with his opponent in his neighbourhood.

Application for Review of the Tribunal Decision

On 8 August 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at first directions, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 2 November 2006. On that date, the applicant filed an amended application which contained the following grounds:
(1)The Refugee Review Tribunal failed to exercise its duty under the s.424A of the Migration Act not to notify the applicant about adverse findings from the independent source.
Particulars
A.    There was no evidence to support the Refugee Review Tribunal's findings that:
(i)     The independent information available also indicates that the relations between religious groups are for the most part amicable; and
(ii)    There has been very few reports to sporadic communal clashes in recent years and the Tribunal did not find information suggesting that Muslims in Mumbai or Maharashtra had been systematically targeted by Hindu majority or Hindu political parties, including the Shiv Sena and the BJP, since mass riots of 1992/3.
(2)The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comment:
Particulars
A.There was no evidence to support the Refugee Review Tribunal's findings that:
(i)    The chance that in the reasonable foreseeable future the applicant will be involved in violence motivated by religious differences and serious harm as a result is remote; and
(ii)   The Tribunal does not accept that the applicant's association with the Muslim League, is profiled and his activities give rise to a real chance of persecution if he were to return to India and reside in Mumbai in the reasonably foreseeable future.
(3)The Refugee Review Tribunal failed to realise the reality of relocation in the context of the applicant's particular circumstances:
Particulars
A.There was no evidence to support the Refugee Review Tribunal's finding that:
(i)    If the applicant wishes to avoid the possibility of further conflict with his opponents in his neighbourhood or in Mumbai for that matter it is reasonable for him to relocate to a different part of India.

Submissions and Reasons

The applicant is a self represented litigant who appeared with the assistance of a Hindi interpreter. The applicant complied with the order to file an amended application and written submissions prior to the hearing. He stated that he relied on these documents and declined to make any oral submissions. I will reproduce the relevant parts of the applicant’s written submissions which address each of the claims raised in the amended application.
The first ground claims a breach of s.424A of the Migration Act and has been identified by the applicant as "adverse information". His submissions repeat the particulars and he contends that the Tribunal did not comply with s.424A of the Act. The applicant also claims that the Tribunal failed to invite him to give written comments. He claims that the Tribunal failed to exercise its duty under s.424A by not notifying him of adverse findings from an independent source.
Ms McWilliam also filed written submissions in response to the amended application and indicated that she would rely upon them. In response to the first ground, Ms McWilliam contends that there is no obligation on the Tribunal arising under s.424A, as in the first instance, the independent country information fell within the exclusionary provisions of s.424A(3)(a) – (that the information is not specifically about the applicant and is just about a class of person of which the applicant or the other person is a member) of the Act and in the second instance, the information within s.424A(3)(b) – (that the applicant gave for the purpose of the application) of the Act.
The Tribunal decision clearly sets out the independent evidence consulted as being from The Asylum and Appeals Policy Directorate of the UK Home Office (India Assessment, October 2005).(CB 82) That material is set out in the decision and clearly makes no specific reference to the applicant: s.424A(3)(a). Similarly all of the material in relation to Maharshtra, Shiv Sena and the Muslim League identifies the source material and makes no direct reference to the applicant but about a class of persons. There is no transcript of the Tribunal hearing before this Court, and, consequently, the extent to which issues arising from the country information were discussed with the applicant is reflected in the decision record. The record shows that a wide range of material was considered and that s.424A(3)(b) came into operation. I accept the submission of Ms McWilliam in respect of this ground.
The second ground of the applicant's written submissions repeats two particulars and submits that the Tribunal acted in excess of its jurisdiction by making those comments. The applicant states that he was involved with the Muslim League in India and if he returned to India he would be involved with political activists. He states that in the past, he was persecuted because of his involvement with the Muslim League and fears that if he is forced to return to India he would be persecuted more harshly than he had been before.
Ms McWilliam referred to the Tribunal stating that it has not found information which suggested that Muslims in Mumbai or Maharshtra had been systematically targeted by the Hindu majority or Hindu political parties, including Shiv Sena.(CB 88.7) However, mere factual errors do not of itself constitute jurisdictional error: NABE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No.2) (2004) 144 FCR 1; Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at [35] per McHugh J. It is submitted that the fact in question was not a jurisdictional fact. In the matter before this Court the Tribunal made a finding specific to the applicant – that he had not suffered serious harm in Mumbai since the riots. That finding was not affected by the factual errors particularised in the second ground and supported the Tribunal's ultimate finding that there was no real chance of the applicant being involved in religious violence in the reasonably foreseeable future.
I accept Ms McWilliam’s submissions in respect of ground two, and I am satisfied that the authorities quoted support those submissions. The second ground cannot be sustained.
The third ground of the amended application submits that internal relocation in India ignores reality and is not an option for him. The applicant submits that although India is heavily populated, the people have close ties with each other. People in India generally only relocate for marriage or employment and the presence of an outsider would be noticed immediately. He submits that an assessor must not be blinkered by Australian experience. Furthermore, the applicant states that he cannot be expected to suppress his inalienable human rights in order to avoid being subjected to persecution.
In support of his submissions the applicant referred to Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081 at [18] per Lee J:
18. First, as discussed in Randhawa, there must be a determination whether it is reasonable, in all the circumstances, to expect a person to live in one part of a country when it is accepted that he would not be safe from persecution elsewhere in that country. Determination of what would be reasonable expectation would involve numerous considerations. If resumption of control of northern Iraq by government authorities is unpredictable, that circumstance would have to be considered, as well as the personal circumstances of the applicant. In the later respect, if the expectation of relocation is to be regarded as reasonable, there must be satisfaction of the basic norms of civil, political and social-economic human rights in that relocation. (See: J Hathaway, the law of refugee status 1991 at 134.) In that regard the Tribunal would have to consider the age of the applicant, his ability to resume life with his family as a free person and not as a person moving from one hiding place to another, and his ability to be able to sustain himself and his family with dignity.
The applicant submits that he is a person who believes in freedom who speaks out if witnesses wrongdoing by individuals, organisations or government authorities. For that reason, his presence in any part of India would cause identical problems. The applicant reiterated that he would be unable to relocate anywhere in India.
In response to the third ground, Ms McWilliam submits that the Tribunal's findings were based on the following evidence:
a)The applicant had not suffered serious harm in Mumbai since the riots (CB 80.8);
b)The applicant was a volunteer, did not have a position in the Muslim League (CB 80.4), and he had not been a member of the party since 2000 (CB 80.8);
c)A lack of any information to suggest that members of the Muslim League were targeted for harm by their political opponents.
It is submitted that in the circumstances, it cannot be said that there was no evidence to support the Tribunal's findings as in the third ground.
Ms McWilliam submits that the Tribunal relied firstly on the applicant's evidence that his problems and activities were confined to his locality and surrounding area.(CB 80.8-10) Secondly, the Tribunal rejected the applicant's claims of being targeted by political opponents because of past membership of the Muslim League or his being Muslim. It found that as a member of a religious minority, Muslims are victims of violence across India, and that communal violence flares up at all times. In this regard, the Tribunal preferred the independent country information to the applicant’s evidence. It was open the Tribunal to do so.
I am satisfied with the analysis of Ms McWilliam and the third ground must be rejected.

Conclusion

The applicant in these proceedings is self-represented, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out. Counsel for the first respondent assisted the Court with written and oral submissions. I am satisfied that none of the grounds identified can be sustained. Neither it is apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision making process. The applicant's claims should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 10 September 2007