SZJHC v Minister for Immigration
[2007] FMCA 1950
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1950 |
| MIGRATION – Review of decision of RRT – where Tribunal decision based upon availability of relocation within India. |
| Migration Act 1958, s.424A |
| NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | SZJHC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2440 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 November 2007 |
| Date of last submission: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms V McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,300.00.
The title of the First Respondent be amended to Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2440 of 2007
| SZJHC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 28 September 2005. On 11 November 2005 he lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 9 February 2006 a delegate of the Minister refused to grant a protection visa and on 2 March 2006 the applicant applied for a review of that decision.
The Tribunal invited the applicant to a hearing which he attended. The Tribunal wrote to the applicant a letter pursuant to s.424A of the Migration Act 1958 (the “Act”). The letter contained an attachment which set out the Tribunal's draft grounds of decision. The Tribunal asked the applicant to comment upon the document and he did so by way of a statutory declaration and a provision of an extract from a newspaper in the Malayalam language.
On 14 July 2006 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 4 August 2006.
The applicant's grounds for claiming to be a person to whom Australia owed protection obligations arose out of his activities as a member of the IUML, a Muslim party in his home state of Kerala. The applicant claimed that he was involved in campaigns against his Hindu neighbours, particularly involving the building of a Hindu temple in front of a Muslim mosque, which occurred in 1996.
The applicant stated in his application that members of BJP Party came to know about his activities and he narrowly escaped from a bomb blast. He says that he organised a petition to protest against the persecution he and members of his group were suffering from but he received no assistance.
When the applicant appeared before the Tribunal he gave a more detailed history of his movements within India where he was employed in Kannur City until 1998 and remained in that city unemployed until January 2001 when he moved to Bangalore. Between 2001 and September 2005 he lived and worked in Oman although he returned to India in late 2002 for a visit.
The tribunal questioned the applicant about his activities on behalf of the IUML. The responses he gave indicated that he attended meetings every few months and worked on behalf of IUML candidates at local or national elections. The Tribunal advised the applicant that he had given the Tribunal no grounds for believing that he was a high profile member of the IUML and asked him why he believed he had been targeted for harm. The applicant made reference to the building of the Hindu temple in front of the mosque and his involvement in demonstrations in that regard. He claimed that he was involved in small demonstrations about twice a month between 1996 and January 2001 in relation to this temple but he did not regularly attend IUML meetings that took place every three to six months.
The Tribunal considered the applicant's statements and came to the view that whilst it was prepared to accept that he was associated with IUML and may well have taken part in demonstrations it could be said that he was a particularly active or a high profile person. One of the applicant's grounds for fearing persecution was that he had been warned to leave his town by the BJP. The Tribunal concluded that having received the warning to leave it was unlikely that if he had complied with that warning he would be traced or further persecuted.
The Tribunal then considered the question of possible relocation within India.
“From his evidence, I understand the applicant was unemployed between 1998 and January 2001. I would have assumed that his attendance at the temple protests may have increased during this period; however this was not admitted by the applicant. However, given I am satisfied the only reason the applicant came to the adverse attentions of persons in Kannur City, Kerala State was because of his alleged attendance at protests, largely during a period when he was unemployed, I was not satisfied there was a real chance that the strength of his alleged religious and or political convictions would bring him to the adverse attention of any person should he return to India in the reasonably foreseeable future. That is because I am satisfied that except for his alleged attendance at the ‘Temple protests’ the applicant would not have come to the adverse attention of any persons or groups in Kannur City.”
The Tribunal looked first at the safety situation and concluded from independent country information that this would not be a problem for the applicant. Then it looked at the reasonableness of expecting the applicant to relocate and noted that factors relevant to the issue of reasonableness would be likely driven by the case sought to be made by the applicant. It noted that the applicant was able to speak Hindi and that whilst he could not speak English very well he had lived in Australia for some time and managed to find work in a country whose language and culture significantly differed from his own. The Tribunal also noted that the applicant had admitted that he would have been able to find work in Bombay if he had tried harder. The Tribunal was satisfied that neither employment, language nor culture would prevent him from reasonably being expected to relocate. The Tribunal noted that no evidence was provided that there were concerns with respect to infirmity, health services or education and concluded then that the applicant could relocate within India.
The finding by the Tribunal in relation to relocation was considered necessary because the Tribunal thought it was possible that the applicant had attended the protests that he had referred to and therefore may have a more than a remote chance of being persecuted for reasons of his actual or imputed political or religious convictions in his home state. The Tribunal also stated:
“I am not satisfied the suppression of his alleged convictions (eg. by not attending future violent protests), would constitute persecution for him. Further, and based on the above evidence, neither am I satisfied the political and/or religious convictions of the present applicant are sufficiently strong that there may be a real chance he could give voice to them on his return and come to adverse attention of the authorities, or other persons, in his country of origin.” [CB 132].
The applicant provided eleven grounds of application to this court. In her helpful written submissions Ms McWilliam has bracketed them in categories and I am happy to deal with them on that basis. She says that grounds 1, 2 and 11 are directed at the outcome of the decision and as such they are not proper grounds for review. These grounds seem to me to be a straight refutation of the Tribunal's views about the applicant. So, provided that the Tribunal has come to those views on the basis of information either from the applicant or from independent sources the coming to such a view is a matter within the mandate of the Tribunal and cannot constitute jurisdictional error.
Grounds 3, 4, 6, 7 and 10 of the application are also directed towards the decision but use a different phraseology; namely "the Tribunal failed to see". Ms McWilliam suggests that this may be an allegation by the applicant that the Tribunal failed to take various matters into account. The first matter in ground 3 of the application relates to the petition for the protection of the DGP. This was a matter that was mentioned and considered by the Tribunal but it was not satisfied on the basis of independent country information that the Indian authorities were unwilling or unable to protect the applicant. [CB 134]. The next matter, (4), claims that the Tribunal failed to give the applicant the benefit of the doubt. In fact the Tribunal did do that [CB 132] when it accepted that the applicant attended relevant protests twice per month in front of the temple. The matter raised in ground 6 was that the Tribunal had not considered that the applicant was an active member of IUML. The Tribunal most certainly considered this. It came to a view about it. It decided that the applicant was not as active in IUML as he had tried to convince the Tribunal he was. In ground 7 the applicant says that the Tribunal failed to see that he had sought protection from the authorities and they had failed to give it. That I have already dealt with in relation to the petition. Finally, in ground 10, the applicant makes the statement that he was targeted by Hindu fanatics because of his active membership of IUML. This was taken into account by the Tribunal which accepted that he may have been the subject of targeting by both the BJP and other members of the Hindu community [CB 132].
In ground 5 the applicant states that the reasons given by the Tribunal for the rejection by the Tribunal of his claims were vague. I think this is unfair of the applicant. The Tribunal's decision is set out quite clearly and in particular the grounds upon which the Tribunal came to the conclusion that he could relocate are detailed. I am not prepared to accept that the Tribunal fell into any jurisdictional error in this regard.
In ground 8 the applicant alleges that the Tribunal committed error by relying on what appears to be independent country information from foreign sources. Tribunals have been relying on this information for a considerable period of time and such reliance has been accepted by the Federal Court (NAHI v Minister for Immigration [2004] FCAFC 10).
Finally, the applicant stated that the Tribunal was wrong to say that he could relocate. As I have said, the finding in relation to relocation is detailed and considers all the relevant material. I am unable to see any jurisdictional error in the manner in which that decision was made.
Ms McWilliam has considered the court book in detail and has drawn the court's attention to the possibility that in making the comments which he did at [CB 132] that the applicant's political and religious convictions were not sufficiently strong that there might be a real chance he would give voice to them on his return and come to the adverse attention of the authorities could be straying over the boundaries set by the High Court in S395/2002 v Minister for Immigration [2003] HCA 71.
I accept her submission that it is not really necessary to consider this matter in any detail because the essential finding by the Tribunal in this case was that whatever the situation was for this particular applicant he could relocate within India safely and reasonably. Such an independent finding would negate any concern that the court might have about the comments to which I have referred.
Before me today the applicant expressed his views about the current situation that he would face if he returned to India. It is fair to say that most of his remarks related to the factual situation and did not go to the manner in which the Tribunal reached its decision. It might be of assistance to the applicant if I set out in these reasons what Allsop J said of the role of the court in SZDFO v Minister for Immigration [2004] FCA 1192 at [9]:
“9 What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.
10 These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error …”
And as the Full Court said in NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 at [27]:
“For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.”
The applicant should understand that this case is not an appeal, it is a review. Provided that the Tribunal came to the conclusions it did within its jurisdiction and I am unable to alter them.
In all the circumstances I am unable to find any grounds upon which the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order the Applicant pay the First Respondent's costs assessed in the sum of $3,300.00. I also order that the title of the First Respondent be amended to Minister for Immigration & Citizenship.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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