SZJHX v Minister for Immigration
[2007] FMCA 515
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 515 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution as a Tamil Muslim in an area where Hindus are in the majority – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether the Tribunal was able to rely upon findings and reasons of a previous tribunal where its decision had been quashed – relocation – natural justice. |
| Migration Act 1958 (Cth), ss.91R, 416, 420, 422B, 424A, 430, 474 |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 230 ALR 1; [2002] FCAFC 2 followed Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 referred to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24; 94 FCR 28 referred to SZHUI & Ors v Minister for Immigration & Anor [2006] FMCA 1042 followed |
| Applicant: | SZJHX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2495 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 December 2006 |
| Date of Last Submission: | 8 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2495 of 2006
| SZJHX |
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 signed on 25th July and handed down on 15th August 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks orders by way of certiorari and prohibition, quashing the Tribunal’s decision and prohibiting the respondent Minister from removing him from Australia pending the outcome of the proceedings.
Background
The applicant is a citizen of India. He is a Tamil by ethnicity and a Muslim by religion. He arrived in Australia on 15th February 2002 and applied for a protection (Class XA) visa on 12th March. His application was refused by a delegate of the Minister on 19th September.
On 27th September 2002 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
Application for review by the Refugee Review Tribunal
The Tribunal affirmed the delegate’s decision on 23rd September 2003 and, on judicial review, the Federal Magistrates Court dismissed the application on 8th June 2005 (SZBXM v Minister for Immigration [2005] FMCA 788). On 5th May 2006 the Federal Court made orders by consent quashing the decision of the Refugee Review Tribunal and issuing a writ of mandamus remitting the applicant’s application to the Tribunal.
The Tribunal invited the applicant to attend a hearing on
24th July 2006. The applicant submitted a statement to the Tribunal in support of his case on 10th July 2006. He enclosed a number of newspaper articles, a document headed “subpoena”, some photographs and a copy of his Indian passport in support of his case. He also supplied a video to the Tribunal.
The applicant attended the hearing and gave evidence about his claim to a well-founded fear of persecution on account of his political opinion and his Muslim religion in a Hindu majority nation. He told the Tribunal that he had escaped India and fled to Australia due to political and religious problems, which were getting worse as his political enemies were now in senior positions in government and were Ministers.[1]
[1] See Court Book at 174
The Tribunal asked the applicant about the Mudhugulathur Muslim Jamath (MMJ) party, to which he claimed to have belonged.
The Tribunal also asked the applicant about independent country information which stated that in May 2005 the BJP and Hindu extremism were soundly rejected at the polls and a secular Congress Party had formed Government. The applicant replied that India was a diverse community with different types of politicians and cited examples of violence towards Christians and Muslims.[2]
[2] Court Book at 175-176
The Tribunal also asked the applicant about the subpoena that he had produced for the hearing and asked him why he was issued with a subpoena 4 years after he left India and also asked him what charges had been made against him:
In reply, the Applicant claimed that he had been involved in politics against Parithi Iiamvazhuthi and a case had been made against him for being involved in a riot and had been going on continuously.[3]
[3] Court Book at 176
The Tribunal asked the applicant about the reasonableness of relocation within India:
In reply, the Applicant claimed that in India it is not practical to move from one place to another. He claims it is a poor country and each state has a different language. He also claimed that if Muslims move states they have to register with the police so they will know where you are from and, if he does, they will fabricate cases just to get rid of him. He also claims that it is not normal to move.[4]
[4] Ibid
The Tribunal’s findings and reasons are set out on pages 177 to 184 of the Court Book.
The Tribunal accepted that the applicant is a national of India on the basis of his Indian passport.
The Tribunal found that there were a number of inconsistent claims made by the applicant over the years between those he made in his protection visa, his application for review, his two hearings and his submission dated 10th July 2006. The Tribunal noted some inconsistencies but went on to make this statement:
That said, however, the issue for the Tribunal is whether the Applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to India, now or in the reasonably foreseeable future.[5]
[5] Court Book at 178
The Tribunal was not satisfied that the applicant had either a religious or political profile because of his involvement with the MMJ party in even the local area of Madras, let alone at the city, province, state or national levels. The Tribunal was also not satisfied that a false case had been brought against the applicant. The Tribunal was satisfied that the applicant was not wanted by the police or other authorities in India for a Convention related reason and it did not accept his claim that he would be arrest3ed or harmed by the police or other authorities in India for a Convention related reason.
Again, on the subject of relocation within India, the Tribunal was satisfied that there was not a Convention reason to prevent him from moving. The Tribunal was satisfied that if the applicant did not want to go back to his village or to his area of Madras City, then it would be reasonable for him to go elsewhere in Tamil Nadu or elsewhere in India without there being a real chance that he would experience serious harm amounting to persecution for a Convention related reason.
The Tribunal was not able to satisfy itself that there was a real chance that the applicant would experience serious harm if he were to return to India, either at the time of the hearing or in the foreseeable future, and found that the applicant was not a refugee. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for judicial review
The applicant, in his amended application, sets out two grounds for relief. First, he claims that the Tribunal made a jurisdictional error in not complying with the requirements of s.424A of the Migration Act. The applicant’s second ground is that the Tribunal denied him natural justice when it made its findings and reasons.
Particulars of the applicant’s grounds for review
The applicant’s first ground alleges a failure to follow the requirements of s.424A of the Migration Act. Particulars of that ground are as follows:
i)
The applicant claims that the Tribunal did not give him particulars of information required to be given by s.424A of the Act relating to his alleged change of claims from those made in his application for a protection visa.
The Tribunal found changes between the application for a protection visa and his more recent and current claims at the second hearing but failed to give this information to the applicant and seek his comments.
ii)The applicant claims that the Tribunal fell into jurisdictional error by concluding that he may not be subjected to serious harm amounting to persecution due to his political opinion and political activities while the Tribunal accepted that:
a.the applicant was not a member of a political party; and
b.the applicant did not have a political profile.
iii)The Tribunal made a jurisdictional error by not seeing evidence on a videotape that the applicant produced to it.
iv)The Tribunal made an error of law when it considered the issue of relocation:
·It did not give written opportunity to comment on this issue with evidence.
·By giving relocation suggestion for him to go elsewhere in Madras City, Tamil Nadu, when Part 7 of the Act does allow the Tribunal to give any suggestion instead of its recording its decision, suggestion is not the required criteria under s.430 of the Act (sic).
The applicant’s second ground claims that the Tribunal denied him natural justice when it made findings and reasons. The particulars of that ground are:
·The applicant did not understand why his claim was rejected and what the reasons are and this was not possible from the decision of the Tribunal.
·The applicant also relied on the particulars of Ground 1.
The particulars given do not refer to any denial of natural justice, in my view.
The applicant’s submissions
The applicant, in a written submission filed on 24th November 2006, referred the Court to the decision of Weinberg J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 230 ALR 1; [2002] FCAFC 2 at [176]:
For example, there may be an obligation under s. 424A(1) for the tribunal to invite an applicant for review to comment upon an adverse inference that might otherwise be drawn based upon a discrepancy between what the applicant said in an interview for the purpose of a visa application, and what he or she later said at the hearing. Under Al Shamry[6], that discrepancy would not fall within the s. 424A(3)(b) exception, because the interview was not information given for the purpose of the tribunal application.
[6] Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
The applicant also referred the court to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 which held that the language of
s.424A is imperative and that failure to provide the applicant with particulars of adverse information in writing constitutes a breach of that section[7].
[7] Unless, of course, the information falls within one of the exceptions in s. 424A(3)
The applicant submitted that the Tribunal found that he would not be subjected to serious harm amounting to persecution due to his political opinion and political activities:
While the Tribunal accepted (a) that the applicant is not a member of a political party (b) that the applicant did not have a political profile these were informed by the applicant to the Tribunal, so this conclusion was made by the Tribunal interestedly to reject the claim because the Tribunal mentioned and accepted that the applicant did not have political involvement then making a reason on this issue is an unfair procedure and violation of natural justice. The applicant did not understand about this conclusion.
The applicant then went on to submit that the Tribunal did not watch the video evidence he submitted. He submitted that:
When the Tribunal asked if he had made a speech to the Applicant about the Video evidence then it was very clear that the Tribunal did not comply with the s. 416, s. 420 and s. 422B of the Act, the Tribunal should see the Video evidence after the Tribunal had met the Applicant and before decision.
The applicant also submitted that when the Tribunal concluded that it would be reasonable for him to relocate elsewhere in India it did not give him a chance to comment on this observation even it did not consider the economic hardship to survive and did not give the Applicant an opportunity to comment on this issue which is an error of law u/s. 91R(2) and s. 424A of the Act.
The applicant also claimed that he was denied natural justice by the Tribunal, referring to the provisions of s.430 of the Migration Act.
He claimed that he did not understand why his evidence was rejected or why and how the Tribunal came to the conclusion that it did.
He referred the Court to the decision of Wilcox J in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24; 94 FCR 28, where his Honour said at [27]:
It is important that a reader be able to discern what conclusion the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s. 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based.
Thus, the applicant claims to have been denied natural justice.
Conclusions
The applicant’s first ground, complaining of a failure by the Tribunal to comply with the requirements of s.424A of the Migration Act, fails. There was no breach of s.424A. Whilst the Tribunal referred to inconsistencies in the applicant’s evidence, the Tribunal made no adverse finding in respect of these inconsistencies. The inconsistent claims did not constitute information which was the reason, or part of the reason, for affirming the delegate’s decision, so s.424A(1) does not apply (see SZEEU (supra) per Moore J at [23]-[26], Weinberg J at [94] and Allsop J at [215-[216]].
In any event, the inconsistent claims in the application for a protection visa come under the exception is s.424A(3)(b), because the applicant had advances those claims to the earlier Tribunal. Counsel for the Minister, Mr Jordan, has drawn the court’s attention to the decision of Driver FM in SZHUI & Ors v Minister for Immigration & Anor [2006] FMCA 1042, where his Honour held at [63]:
Where an applicant puts information to a review tribunal for the purposes of his or her review application, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of ‘the [review] application’: s.424A(3)(b).
With respect, it appears to me that SZHUI has been correctly decided and I propose to follow that decision.
The applicant claims that there is some sort of unfairness and a denial of natural justice because the Tribunal accepted that he was neither a member of a political party nor did he have a political profile and therefore found that there was not a real chance that he would be subjected to serious harm amounting to persecution because of his political opinion. There is nothing unfair in the fact that the Tribunal accepted the applicant’s evidence on that issue, let alone any denial of natural justice.
Similarly, there is no breach of s.424A (1) of the Act, because the applicant had given that information to the Tribunal himself during the hearing. Again, it is hard to see how the applicant could not have understood the Tribunal’s reasons for its conclusions, which are clearly set out in this passage:
Asked if there were any other reasons he believed he was a refugee, the Applicant claimed that because of his having been persecuted and as a person with political problems, he feared that he will be persecuted and his property damaged and therefore his life was not secure. The Tribunal accepts that over the years the Applicant was involved on the periphery of politics in his area in India and accepts that he did the tasks he claims he did. However, the Tribunal accepts that the Applicant does not claim that he was even a member of apolitical party and is satisfied that while he did these menial activities, he did not actually have a political profile of any sort but was simply was one of many involved in very some[8] limited way canvassing in the lead up to some elections. Given this finding, the Tribunal is satisfied that there is not a real chance that the Applicant may be subjected to serious harm amounting to persecution due to his political opinion and political activities, either because of what he has done in the past or if he again undertook them on his return to India, and the Tribunal does not accept these claims.[9]
[8] sic
[9] Court Book at 179
Clearly, there is no breach of s.424A.
The applicant also claimed that the Tribunal made a jurisdictional error by not watch the evidence on a videotape provided by the applicant in support of his case. This claim is incorrect. The Tribunal noted that the Tribunal member did watch the video.[10] The applicant went on to claim in his written submission that the Tribunal should have watched the video evidence after the hearing. There is no substance to this claim, which, curiously, is given as a particular of the applicant’s ground alleging a breach of s.424A. This claim has nothing to do with s.424A of the Act.
[10] Court Book at 175
The applicant claims that by not watching the video evidence, either at all (which is incorrect) or after the hearing, the Tribunal in some way did not comply with ss.416, 420 and 422B of the Migration Act.
This claim is entirely without merit. Section 416 provides that only new information is to be considered in later applications for review. Section 420 provides that:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence: and
(b)must act according to substantial justice and the merits of the case.
Contrary to the applicant’s claim, the Tribunal member did watch the video evidence provided by the applicant and asked the applicant about it. There is no breach of s.420 where the Tribunal considers the evidence provided but is not persuaded by it.
The applicant also claims a breach of s.422B of the Migration Act arising out of his claim that the Tribunal did not watch the video evidence. Section 422B states that the Subdivision in which it is placed is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. Section 422B(2) refers to s.416 by making clear that it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The applicant’s claim that the Tribunal did not comply with s.422B has no substance whatsoever and is misconceived.
The applicant also takes issue with the Tribunal’s finding about the reasonableness of relocation within India. He complains about not having been given a chance to comment on the Tribunal’s finding, which he claims is a breach of ss.91R(2) and 424A of the Act. It is neither.
Section 91R(2) of the Migration Act contains instances of serious harm for the purposes of s.91R(1)(b). The applicant’s claim of a breach of
s.91R(2) in the Tribunal’s relocation finding misconceives the meaning and effect of the subsection.
Similarly, the Tribunal’s conclusion about relocation is not “information” for the purposes of s.424A(1) (SZEEU per Allsop J at [205]-[207]). The Tribunal asked the applicant about the reasonableness of relocating to another part of India during the hearing and the applicant replied. One of the matters that the applicant referred to was the fact that India is “a poor country”.[11]
[11] Court Book at 176
The Tribunal’s finding about relocation was open to it on the evidence. There was no breach of s.424A in the Tribunal’s finding, indeed
s.424A is irrelevant. The applicant’s claim that the Tribunal did not consider the question of economic hardship is a challenge to the Tribunal’s factual finding and amounts to a claim for merits review.
The applicant claims that the Tribunal’s relocation finding is somehow a breach of s.430 of the Migration Act. Section 430 (1) requires the Tribunal to prepare a written statement when it makes a decision on a review:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
The applicant’s claim in the amended application, insofar as it is comprehensible, that it is not the function of the Tribunal under s.430 to make a suggestion as to where the applicant could relocate completely misconceives both the meaning of s.430 and the effect of the Tribunal’s decision. The Tribunal said:
However, the Tribunal does not accept these sweeping and unsupported claims, and is satisfied that if for any subjective reason the Applicant does not want to go back to his own village of (M)[12] or his area of Madras City, then it would be reasonable for him to go elsewhere in Madras City, Tamil Nadu…or indeed elsewhere in India without there being a real chance that he would experience serious harm amounting to persecution for a Convention related reason.[13]
[12] Name withheld to avoid identifying the applicant
[13] Court Book at 182
There is no error in the Tribunal’s finding about relocation.
The applicant’s second ground claims that the Tribunal denied him natural justice in that it did not comply with s.430. The applicant said in the particulars in his amended application:
The Applicant did not understand why his claim was rejected and what are the reasons and this was not possible to find out from the decision of the Tribunal.
There is no denial of natural justice. The Tribunal decision complies with s.430. Whilst the applicant may complain that he did not understand why his claim was rejected, it is not correct to say that it was not possible to find out the reasons from the Tribunal’s decision record.
The Tribunal did not accept that the applicant had a political or religious profile as a result of his activities in India.[14] The Tribunal was not satisfied that a false case had been brought against the applicant for a Convention reason.[15] Again, the Tribunal did not accept that the applicant faced persecution in India merely because of his Muslim religion. This finding was based on independent country information and a lack of recent evidence about persecution.[16]
[14] Court Book at 179
[15] Court Book at 181
[16] Court Book at 182
The Tribunal was satisfied that even if the applicant did hold a subjective fear of persecution in the area of Madras, he could safely relocate elsewhere within India.[17]
[17] Court Book at 182
The Tribunal’s reasons are readily ascertainable from the decision.
The applicant’s second ground for relief fails.
The applicant has not been able to demonstrate jurisdictional error by the Tribunal. Noting that the applicant is not legally represented, I have read through the decision and supporting material independently of the applicant’s claims, and I cannot discern any arguable case for finding jurisdictional error. It follows that the Tribunal decision is a privative clause decision and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
The application will be dismissed. I note that the title of the Minister has changed to Minister for Immigration and Citizenship and I will make an order to that effect. I will consider submissions on costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 April 2007
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