SZJOQ v Minister for Immigration

[2007] FMCA 2064

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2064

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.424A

Minister for Immigration & Multicultural & Indigenous Affairsv NAMW  [2004] FCAFC 264
Randhawa v Minister For Immigration, Local Government And Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister For Immigration and Citizenship [2007] HCA 40
SZFDV v Minister For Immigration and Citizenship [2007] HCA 41
SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661
SZKGW v Minister for Immigration & Anor [2007] FMCA 1912

First Applicant SZJOQ

Second Applicant SZJOR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent REFUGEE REVIEW TRIBUNAL

File number: SYG 3115 of 2006

Judgment of: Barnes FM

Hearing date: 6 December 2007

Delivered at: Sydney

Delivered on: 6 December 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the name of the first respondent be amended to read "Minister for Immigration & Citizenship". 

2. That the application be dismissed. 

3. That the applicants pay the costs of the first respondent fixed in the sum of $3,700. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3115 of 2006

SZJOQ

First Applicant

SZJOR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reviewed from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 5 October 2006 affirming a decision of a delegate of the first respondent to refuse to grant the applicants protection visas. 

2. The applicants are husband and wife and citizens of India who arrived in Australia in March 2006.  In April 2006 they applied for protection visa.  The application was refused.  The applicants sought review by the Tribunal.  The Tribunal conducted a hearing which the applicants attended.  As indicated above, the Tribunal affirmed the decision of the delegate. 

3. The only person making specific claims under the Refugees Convention in connection with the application was the applicant’s husband.  He is referred to for convenience hereafter as the applicant. 

4. In connection with his protection visa application the applicant provided a statement setting out the basis on which he claimed to have a well-founded fear of persecution should he return to India.  In essence, his claims were based on his Hindu religious beliefs, his membership of a family clan and his association with the BJP, (a political organisation in India).  He claimed, in particular as a Hindu, to fear persecution at the hands of Muslim extremists because of his religious background and that his problems in that respect had really started during 2002 riots in the state in which he lived in India.  He claimed that his family ran a car washing business and that during the riots Muslim extremists had attacked the family business, he had been physically assaulted and considerable damage had also been caused to property. 

5. He claimed that thereafter he and his family received death threats over the telephone which he said came from Muslims.  He was warned to stop his business and when he reported the incident to the police he was told there was nothing they could do to help him.  The applicant elaborated on claims about what occurred thereafter, including a claim of further attacks in September 2002 during an incident in which 30 people were killed and that in a disturbance between Muslims and Hindus a petrol bomb had fallen into his home.  He also claimed that one night he had been attacked by members of the Dawood Ibrahim Islamic fundamentalist gang because his family was rich and the gang knew that he was rich and influential. 

6. He also claimed that the gang was angry that he was involved in politics and supported the BJP which was anti-Muslim.  In that respect he claimed to be a hardworking supporter of the BJP, that he was close to local leaders and that he used to drive vehicles carrying officials to functions and gatherings.  He claimed that he had been observed celebrating during victory celebrations when the BJP won local state elections.  He also claimed that he had been abducted on one occasion by gang members and had been made to witness the death of a milkman who had been killed in order to teach him a lesson so that he would leave town.  He claimed that he then took steps to organise his finances and arrange for visas and tickets, but that before he left India he was once again kidnapped by the gang, driven around town and told to leave town. 

7. The Tribunal detailed the applicant's elaboration of these claims at the Tribunal hearing.  In particular, the Tribunal recorded that it asked the applicant about the times at which he had received threatening phone calls, what had happened to his family who remained in India and why he had not moved to other areas in his hometown or elsewhere in India. 

8. In its findings and reasons the Tribunal addressed first to the applicant's claims that he was a Hindu who ran a family business with other members of his family, that was attacked because of the applicant’s religious background, during the 2002 community tensions in the state.  The Tribunal accepted that there were unfortunate community disturbances in that state at that time and that based on independent country information, several houses and businesses on either side of the conflict were attacked.  It also accepted that the applicant may have been a businessman in India and that he was a Hindu.  It found on the evidence before it that it was probable that the applicant's family business may have been attacked during the 2002 riots.  However, the Tribunal noted that those incidents had occurred in 2002.  It had referred to the fact that it seemed that the business was now back in operation and that on the applicant's admission his brother ran the business and other family members were still associated with the business.  The Tribunal found:

   The fact that the applicant's family members are all Hindus and continue to run the family business and the fact that they are currently still living in the same city without any apparent indication of persecution undermines the applicant's claims that he faces persecution because he is Hindu or because of his association with the family business. 

9. The Tribunal also found that it was not satisfied that the applicant faced any real risk of persecution because of his membership of the [named] family clan  which was said to be perceived as a family of rich and influential people.  It did not find his account of being targeted by members of the Dawood Islamic gang because of his membership of that clan to be plausible.  It considered his claim as a claim that he was a member of a particular social group (a member of that clan), but had regard to the fact that on the applicant's evidence his family members, who were also members of the clan, continued to live in the same city and that there was no indication that they were under attack.  Hence, the Tribunal did not accept that the applicant's association with the clan as a particular social group endangered his life or that he faced persecution as a result of membership of that group.

10. Nor was the Tribunal satisfied that the applicant was targeted by the Dawood Islamic gang because of his association with the BJP.  It noted that while the applicant claimed to have been closely associated with the BJP, he did not claim to have been an official, but rather a driver who assisted in campaign activities and was closely associated with senior members.  It noted that at the time of the Tribunal decision the BJP was one of the major political organisations in India and in the applicant's home state and that the BJP had won the election. 

11. It found that given the applicant's profile as a driver in the BJP it was not plausible that the Dawood Islamic gang would have targeted him and demanded that he leave the state or India because of his association with the BJP.  It found that it was not plausible that leaders and more highly profiled members of the BJP would still operate in the state but that an ordinary driver associated with a political party would be asked by an Islamic gang to leave India because of his work with the party.  It was not satisfied that he was of any adverse interest to the gang and found his claims that they targeted him not plausible. Hence it rejected them. 

12. In relation to the applicant’s claim that he had been abducted and forced to witness the murder of a milkman, it found that if the applicant was of such adverse interest to the gang as to induce them to abduct him it did not seem plausible that he would have been forced to witness a murder and then have been allowed to go free.  It found the claim was not plausible.  In relation to his claim that he had received phone calls demanding he leave India because of his religious background and political activities the Tribunal found it implausible, given the applicant’s profile, that the BJP opponents would have targeted him in this way.  It did not accept these claims. 

13. The Tribunal then found that even if it accepted the applicant's claims that he was targeted because of his Hindu background or his association with the BJP, that would not assist him as he could have moved to other cities in India.  It had regard to the fact that India was a large country and contained cities such as Mumbai with a large population which was predominantly Hindu.  It addressed the applicant's claims that although Mumbai was a vast city he would have been found by the Dawood gang, but, as noted, given his profile, found this claim not to be plausible, finding no credible or plausible basis in his profile for the suggestion that the gang would look for him throughout the whole of India simply because he drove a vehicle for the BJP.  On the evidence before it the Tribunal was not satisfied that the applicant faced a real, as distinct from a remote, possibility of persecution on his return to India from the Dawood gang and rejected those claims. 

14. As the Tribunal was not satisfied that the applicant husband was a person to whom Australia had protection obligations under the Refugees Convention and as the applicant wife's application depended on the outcome of her husband's application it followed that she did not satisfy the criteria for a protection visa.  

15. The applicants sought review by application filed in this Court on 25 October 2006.  They rely on that application and an affidavit sworn by the applicant husband and filed on 25 October 2006.  No written submissions were filed and the applicant husband did not seek to add to the application or affidavit in oral submissions today.  While the application contains three grounds, the affidavit is in fact expressed in terms which raise additional grounds of review. The first respondent's written submissions considered the application on the basis of all of the matters raised in the application and affidavit. 

16. The first ground in the application is as follows: 

    The Tribunal was in breach of section 424A of the Act as it failed to give independent country information. 

17. This appears to be a contention that the Tribunal should have put to the applicant for comment independent country information on which it relied. There were no specific items of independent country information referred to in the decision other than a reference to those contained in the departmental and Tribunal file. Such information would fall within the exception in s.424A(3)(a) of the Act (see the Minister for Immigration & Multicultural & Indigenous Affairs v NAMW  [2004] FCAFC 264) and hence there was no obligation on the Tribunal to put it to the applicants for comment under s.424A(1) of the Act. No failure to comply with s.424A(1) in the manner contended is established.

18. The second ground is the applicant was not given opportunity to address adverse information held and relied on by RRT. There are no particulars of this ground and, as I indicated, there was no elaboration on the grounds by the applicant. There is nothing in the Tribunal reasons for decision to indicate that any s.424A(1) obligation was enlivened in this case, having regard to the exceptions in s.424A(3)(a) in relation to independent country information and s.424A(3)(b) in relation to information provided by the applicant. This generally expressed contention does not establish jurisdictional error. There is no particularisation of adverse information and insofar as this is intended also to refer to independent country information, as indicated, that is outside the operation of s.424A. There is nothing in the material before the Court to indicate that the Tribunal relied on other adverse information or information in the protection visa application in a manner that would give rise to an obligation under s.424A(1) of the Act.

19. Ground 3 in the application has a number of components.  First, it is contended that the Tribunal did not consider the social class of the applicant.  Insofar as this is a contention that the Tribunal failed to consider the applicant's claim to fear persecution as a member of his family clan (on the basis that the clan contained rich and influential people), as set out above, the Tribunal understood and specifically addressed this aspect of the applicant's claims.  There is nothing in the material before the Court to suggest that any other particular social group was raised on the face of the evidence, unless this is intended to be a reference to the applicant's claims in relation to his association with the BJP, another matter which the Tribunal did in fact consider.  In each case the Tribunal rejected the applicant's claims for the reasons which it gave which, as set out above, were open to it on the material before it. 

20. It is then contended that the Tribunal did not consider relocation issues and how that affected the applicant.  The Tribunal did consider the issue of relocation as an alternative basis for its decision in relation to the applicant’s claim that he was targeted because of his Hindu background or because of his association with the BJP.  It is clear that this was an alternative basis for the decision because, as the Tribunal reiterated at the start of that consideration, it did not in fact accept the applicant's claims in that respect.  The Tribunal then made findings in relation to the issue of relocation.  It is apparent from the Tribunal account of what occurred in the Tribunal hearing, which is the only evidence before the Court of what occurred in the hearing, that in making those findings the Tribunal had regard to the obstacles to relocation raised by the applicant, specifically his fear that even if he relocated and lived in a bigger city he would be found by the Dawood gang. 

21. While there is no express reference in the Tribunal consideration of relocation to notions such as the “reasonableness” or “practicability” of relocation, it is apparent from the Tribunal findings that in fact it considered the obstacles to relocation raised on the material before it, (see Randhawa v Minister For Immigration, Local Government And Ethnic Affairs (1994) 52 FCR 437 and the recent decisions of the High Court in SZATV v Minister For Immigration and Citizenship (2007) HCA 40 and SZFDV v Minister For Immigration and Citizenship (2007) HCA 41), having regard to the particular circumstances of the applicant and the impact upon him of relocation of his place of residence within his country of origin. In any event, even if there was an inadequacy in the Tribunal consideration of relocation which could be considered to give rise to a jurisdictional error, there was in this case an alternative independent basis for the decision in that, as set out above, the Tribunal rejected each of the applicant's claims as to the basis on which he had a well-founded fear of persecution in the future.

22. Such findings preceded and were independent of and would not have been affected by any error in the Tribunal's consideration of relocation.  Any failure by the Tribunal to address the issue of relocation in the manner mandated by recent decisions in relation to relocation (as a step towards reaching its conclusion about the well-foundedness of the applicant's fear) did not affect the decision of the Tribunal in those circumstances and relief should be refused on that basis (see the discussion in SZKGW v Minister for Immigration & Anor [2007] FMCA 1912 at [39]-[42]).

23. As indicated, the applicant's affidavit also raises what can be seen as grounds for review of the Tribunal decision. However the first paragraph in the first affidavit in effect raises the same matters as ground 1 in that it contends that the Tribunal was in breach of s.424A of the Act in failing to put him for comment independent country information it relied on. It should be rejected for the reasons give above.

24. I note that while that paragraph goes on to suggest that the Tribunal decision was infected with jurisdictional error because it asked wrong questions in relation to the matter, there is no particularisation of this claim other than the claim in relation to s.424A which is not established.

25. Finally, the applicant claimed in the affidavit that the Tribunal failed to consider his individual case and fears and instead reached a decision based on the fact that his parents and brother in India were operating the family business and had not been harmed or threatened.   The applicant claimed that his claims were personal to him and the Tribunal should not have generalised them and that it “ruled it as implausible based on general perception.”

26. No jurisdictional error is established on this basis.  First, the Tribunal did consider the integers of the applicant's claim, his individual case and the claimed bases for his fear of persecution.  It was open to the Tribunal in addressing aspects of those claims, in particular the claims based on the applicant’s Hindu religion and conducting the family business, to have regard not only to what had occurred in the past, but also to the applicant's evidence in relation to the present situation of his family members who were Hindus and running the family business.  In that respect, the Tribunal found that the incidents involving the applicant's business occurred in 2002, that whatever the applicant's family business situation may have been, the business was back in operation and that by his own admission the family had been running the business for the last 13 years and currently employed three people under the management of his brother.

27. It was also open to the Tribunal to find that the fact that the applicant's family members were all Hindus who continued to run the family business and were still living in the city from which the applicant came and where he claimed that he had suffered the past experiences and that there was no apparent indication of persecution of such family members undermined the applicant's claims that he faced persecution because he was a Hindu or because of his association with the family business.  In effect this ground seeks merits review of the Tribunal decision.  Merits review is not available in this Court.  The findings of fact the Tribunal made about the applicant's claims are matters for the Tribunal.  The Tribunal has the primary function of making findings of fact and it is not within the jurisdiction of this Court to reconsider the merits of an applicant's claims (see SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [7]).

28. As no jurisdictional error has been established, the application must be dismissed. 

29. The applicants have been unsuccessful.  It is appropriate that they meet the costs of the first respondent.  The amount of $3,700 is, I consider, a fair and reasonable amount and is appropriate in light of the nature of this and other similar matters. 

1. It is also appropriate to amend the name of the first respondent to reflect current portfolio obligations. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: