SZJJX v Minister for Immigration
[2007] FMCA 578
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 578 |
| MIGRATION – Bias not established – cause shown why orders should not be made for the relief claimed. |
| Migration Act 1958 s.36(2), 91R |
| First Applicant: | SZJJX |
| Second Applicant: | SZJJY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2671 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 5 March 2007 |
| Date of last submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Mr P. Clay of Clayton Utz |
ORDERS
The application and amended application are dismissed pursuant to Rule 44.12(1)(a).
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2006
| SZJJX |
First Applicant
| SZJJY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 September 2006 for an order that the respondents show cause why a remedy should not be granted as sought in the application to review the decision of the Refugee Review Tribunal (“the Tribunal”) that affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 2 November 1997 and claims to be from the province of Gujarati in India and of Gujarati and of Hindu faith (“the Applicant”).
The applicant is married with young children, who remain in India. The applicant’s wife was named on the applicant’s application for a protection visa as a family member seeking protection.
The applicant arrived in Australia on 17 February 2006 on a business visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 27 March 2006. In this application he claimed that he would be persecuted because of his involvement in the 2002 Godhra riots in which the applicant claims he helped fellow Hindus fight against Muslims. He also claimed that due to involvement in this riot he came to the attention of Muslim fanatics who continued to persecute Hindus in the local area. The applicant claimed they mistakenly believed he was involved in a massacre of Muslims in the area carried out by Hindu fanatics, despite the applicant not being involved in the massacre, and feeling sympathetic to Muslims who were killed. The applicant claimed that in 2005 his business was destroyed by the ongoing violence, although he was able to escape and travel to Australia (Court Book “CB” 20).
This application was refused by a delegate of the first respondent on
20 May 2006.
On 15 June 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 2 August 2006, at which time he maintained the claims made in his original protection visa application.
On 24 August 2006 the Tribunal handed down its decision, dated
7 August 2006, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 73-4):
The husband applicant is claiming that he has been attacked once, and thereafter threatened, by Muslims because they believed he was involved in the assault of a Muslim following the 2002 Godhra train incident. He claims that his adversaries were released by the by the police after a short period of detention and that they continued to threaten him.
The Tribunal found the applicant’s evidence to be unconvincing for the following reasons.
In the light of the unrest that occurred following the Godhra train incident, the Tribunal is prepared to accept that the applicant’s store was attacked in 2002 and destroyed. However, the Tribunal finds as implausible, and does not accept, that he would be pursued for some four years following what, in his own evidence, was only a marginal association with the Godhra train incident. The Tribunal finds as unconvincing that he could be continually “phoned” with threats while at the same time claiming he was continually relocating to friends’ homes to avoid those he claims wished to harm him. Indeed, if the police already knew the identities of his attackers, he could again have approached the police to report this harassment.
However, if indeed he felt threatened in the manner he claims, the Tribunal finds that it would be reasonable, in the particular circumstances of his case, for him to relocate to some other city in India, such as New Delhi, Calcutta, or Mumbai, where he would no longer face harassment by the local people he claims to fear. The Tribunal found his explanation of why he did not want to do this – that he lacked “courage”, to be unconvincing given the fact that he has been able to relocate to Australia, albeit a country where he might have family support. In the light of his ability to find employment in a factory following his abandonment of the lease to his shop, the Tribunal finds he could he could find similar work in any of the above named cities in India.
In the light of the evidence before it, the Tribunal is not satisfied that the husband applicant has a well-founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds his fear is not well-founded.
Having considered the evidence as a whole, the Tribunal is not satisfied that the husband applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the husband applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific claims were made by or on behalf of the wife applicant. The fate of her application therefore depends on the outcome of her husband’s application. As the husband applicant cannot be granted a protection visa, it follows that his wife cannot satisfy the alternative criteria set out in s.36(2)(b) and cannot be granted a protection visa.
The Tribunal affirms the decision not to grant the applicants Protection (Class XA) visas.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal exceeded its jurisdiction because of its finding “if indeed he felt threatened in the manner he claims, the Tribunal finds that it would be reasonable, in the particular circumstances of his case, for him to relocate to some other city in India, such as New Delhi, Calcutta, or Mumbai, where he would no longer face harassment by the local people he claims to fear.”
(2)That the Tribunal made serious breach of the law due to its finding – “the Tribunal finds as implausible, and does not accept, that he would be pursued for some four years following what, in his own evidence, was only a marginal association with the Godhra train incident.”
(3)The Tribunal failed to consider the applicant’s continued fear of them when concluded “The Tribunal finds as unconvincing that he could be continually “phoned” with threats while at the same time claiming he was continually relocating to friends’ homes to avoid those he claims wished to harm him.”
All grounds in the application challenge findings of fact that were properly open to the Tribunal. Those findings are not open to review.
An amended application was filed by leave of the Court on 5 March 2007. The grounds in the amended application are:
Ground One
That the Tribunal failed to assess the Applicant’s ‘fears of harm’ suffered according to the Refugee Criteria and misapplied the Applicant’s claims due to following finding and thereby failing to evaluate the fears as per sec.91R of the Migration Act 1958: -
“…in his own evidence, was only a marginal association with the Godhra train incident…In the light of the evidence before it, the Tribunal is not satisfied that the husband has a well founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds his fear is not well founded.”
The Applicant submit that the Tribunal failed to consider the Applicant’s oral evidence given at the hearing, namely: -
“…a Hindu man cut a Muslim man…I was there when they cut him. So Muslims thought I was one of them, and the people were goaled, and they were given five years off later. Luckily I escaped from there. And the Muslims think that I was part of them” (Transcript paras 20 & 21).
Wherefore the Applicant submit that the Tribunal failed to consider vital information given by the Applicant while assessing the Applicant’s claims of fear and such avoiance (sic) of information (sic) amounts to a jurisdictional error according to the High Court decision in Craig v SA.
Ground Two
That the Tribunal failed to reach the required satisfaction in terms of section 414 (sec 65 being for the Delegate) of the Migration Act 1958 when making the ‘relocation’ finding for the Applicant, because it was tainted with ‘bias’ because of the following comparison it made to support that ‘relocation’: -
“The Tribunal found his explanation of why he did not want to do this – that he lacked “courage”, to be unconvincing given the fact that he has been able to relocate to Australia, albeit a country where he might have family support. In the light of his ability to find employment in a factory following his abandonment of the lease of his shop, the Tribunal finds he could find similar work in any of the above named cities in India.”
The Applicant submit that he belonged to a particular social group in India, namely Gujarati and therefore according to Randhawa Principles, the Tribunal could not have ensured the Applicant with an ‘effective relocation’ envisaged in Randhawa due to many language, caste, cultural and religious sensitivities and conflicts in abundance in India contrary to the situation in Australia.
Conclusion
In summary form, the grounds in the amended application are:
i)That the Tribunal failed to assess the applicants’ fear of harm and misapplied the applicants’ claims.
ii)That the Tribunal’s finding in relation to relocation was tainted with bias.
It is complained that the Tribunal found that the applicant husband had only a marginal association with the Godhra train incident, whereas he says that the Muslim community thought that he was one of the people responsible for injuring a Muslim man. The Court finds that the Tribunal did not misunderstand that claim (CB 73.3).
The Court finds that the Tribunal did assess the applicants’ fears of harm and reached conclusions of fact properly open to it.
The Tribunal found the applicant’s evidence to be unconvincing (CB 73.5).
The Tribunal “does not accept that he would be pursued for some four years following what, on his own evidence, was only a marginal association with the Godhra train incident” (CB 72.1 and 73.6)
The Court notes that the Tribunal reached that conclusion after the applicant appeared before it on 2 August 2006 and gave evidence and presented arguments (CB 71.3).
The Tribunal stated that it “finds as unconvincing that he could be continually phoned with threats while at the same time he was continually relocating to friend’s homes to avoid those he claims wished to harm him” (CB 73.6).
The applicant husband asserts that the Tribunal failed to assess whether the applicant’s claims amounted to persecution under s.91R of the Migration Act. The Court finds that the Tribunal was not convinced by the applicant’s claims to fear harm (CB 73). These were findings of credibility and fact properly open to the Tribunal. The Tribunal, having found that the applicant did not fear harm, did not have to assess whether the applicant’s claims amounted to Convention-related persecution.
The Tribunal also found that even if the applicant husband did feel threatened, “it would be reasonable, in the particular circumstances of the case, for him to relocate to some other city in India…where he would no longer face harassment by the local people he claims to fear.” (CB 73.7)
Ground 1 therefore does not raise an arguable case.
Ground 2 alleges that the Tribunal’s finding in relation to relocation is tainted with bias. There is nothing to show that the Tribunal has approached the matter with a closed mind. There is no ground for a reasonable apprehension of bias. This ground does not raise an arguable case.
As to the claim that the applicant husband belonged to a particular social group (Gujarati) and this was the reason why he could not relocate, the Court notes that the Tribunal covered the issue of relocation with the applicant at the hearing (CB 72.2).
A transcript of the Tribunal hearing has not been provided to the Court. There is no evidence before the Court that the applicant raised any difficulty with being a member of the Gujarati group. The reason he gave for not being able to relocate within India was that he “did not have enough courage to overcome his losses of the 2002 attack and the death of his father” (CB 72.2).
Further, the Tribunal wrote to the applicant husband before the hearing (CB 46-47) inviting him to comment on information it had that indicated that:
“in the event that you do not wish to return to your home in Gujurat, you are at liberty to relocate elsewhere in India where you will be safe and that relocation on return to India is a viable option for you.”
The applicant did not reply to that invitation (CB 71.6). The applicants therefore had full opportunity to raise the Gujurati group concern, and failed to do so. The Court finds that the Tribunal’s decision on relocation was properly open to it on the information before it.
The Court finds that the applicant husband had sufficient opportunity to give evidence and make submissions about the issue of his membership of the Gujurati group, and about the other bases for his fears. The Tribunal made the applicants aware that relocation within India was an issue (CB 73.7) and gave them full opportunity to address the issue.
The Court is satisfied that the respondents have shown cause why orders should not be made for the relief claimed. The application and amended application are dismissed pursuant to Rule 44.12(1)(a).
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 17 April 2007
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