SZJPG v Minister for Immigration

[2007] FMCA 953

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJPG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 953

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A(1) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was obliged to obtain evidence from witnesses – whether the Refugee Review Tribunal considered all claims made – whether the Refugee Review Tribunal was obliged to consider relocation.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZCVC v Minister for Immigration and Multicultural Affairs [2006] FCA 1535

First Applicant: SZJPG

Second Applicant: SZJPH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3166 of 2006

Judgment of: Emmett FM

Hearing date: 5 June 2007

Date of last submission: 5 June 2007

Delivered at: Sydney

Delivered on: 22 June 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Mr D. Godwin

Solicitors for the Respondent: Ms S. Palaniappan, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3166 of 2006

SZJPG

First Applicant

SZJPH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

   
   

   18 September 2006 and handed down on 5 October 2006 (“the Tribunal”).

2. The first named applicant is the husband of the second named applicant. The claims of the second named applicant are dependent on those of the first named applicant. For that reason, these Reasons will address only the claims of the first named applicant. The first named applicant was born on 17 May 1977 and claims to be from India and of Gujarati ethnicity and Hindu faith (“the Applicant”).

3. The Applicant arrived in Australia on 2 May 2006 having legally departed from Bombay on a passport issued in his own name and a tourist visa issued on 15 February 2006.

4. On 10 May 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. The Applicant’s protection visa application was supported by a statement by the Applicant claiming to fear persecution at the hands of Muslim extremists by reason of being a Hindu. He also claimed to fear persecution by members of the Congress party in India because of his membership in the Bhartiya Janata Party (“the BJP”). The Applicant asserted that his brother and brother-in-law were involved with the BJP. He asserted that his brother was attacked by Muslim fundamentalists after the riots in Gujarat in 2002 and that his brother-in-law was attacked by the Dawood Ibrahim Gang. The Applicant asserted that both his brother, brother-in-law and sister came to Australia and sought protection. The Applicant claimed that, because of his association with his brother and brother-in-law, he was also be targeted by members of the opponents of the BJP.

6. The Applicant claimed that, after his brother left India, he took over his brother’s business and was subsequently extorted by members of the Dawood Ibrahim Gang. He claimed that one night police came to his house, took him in a jeep with others to an isolated place where he was drugged and beaten.

7. On 10 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

8. On 23 June 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 5 October 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 30 October 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. On 31 August 2006, the Applicant attended a hearing before the Tribunal at which he gave evidence.

2. The Tribunal noted that it had before it the Department’s file relating to both applicants, including the Delegate’s decision and other material available to it from a range of sources.

3. The Tribunal noted that the Applicant spoke to his written statement provided in support of his protection visa application. The Tribunal identified with some particularity the oral claims made by the Applicant to the Tribunal and the expansion by the Applicant of those claims. The Tribunal also referred to various exchanges it had with the Applicant about concerns arising out of his claims.

4. The Tribunal accepted that in 2000 there were religious tensions in Gujarat. However, the Tribunal also noted that the Applicant is a Hindu and that Hindus are the majority of the people in the state of Gujarat. The Tribunal found that in the circumstances Hindus could practise their religion freely in Gujarat. The Tribunal found that the Applicant did not provide any “credible or plausible information or evidence to support his claims of religious persecution.” The Tribunal rejected the Applicant’s claim that he or his business was targeted because of his religious beliefs.

5. The Tribunal noted that the Applicant did not provide corroborative information to support his claim of being attacked by members of the Dawood Ibrahim Gang. The Tribunal rejected the Applicant’s claims of being extorted by the Dawood Ibrahim Gang or other Islamic fundamental groups because of his religious beliefs. In the circumstances, the Tribunal was not satisfied that the Applicant faced a real risk of persecution by the Dawood Ibrahim Gang or fundamentalist groups if he were to return to India and accordingly rejected the Applicant’s claim of a fear of persecution on religious grounds.

6. The Tribunal noted that the Applicant also claimed to fear persecution because of his political opinion on the basis of his association with his brother and brother-in-law who were involved with the BJP. The Tribunal rejected the Applicant’s claim that he used to go on campaign activities with his brother and brother-in-law or that he came to the adverse attention of opponents of the BJP. In making that finding, the Tribunal had regard to the fact the Applicant himself had admitted that senior officials and other operatives of the party still reside in India and, having won the election, now operate government on several levels in the country. The Tribunal found that the profile of the Applicant was such that it was “not plausible that he could or would have been targeted by opponents of the BJP while senior officials of the party are able to live in India without hindrance from such opponents.”

7. The Tribunal did not accept that the Applicant played a critical role in the organisation of the BJP given his profile. The Tribunal noted that higher profile people in the BJP still resided in India with no reports that they had become the target of Congress party opponents. Accordingly, the Tribunal found that it was “implausible that the applicant would have been the target of attacks.”

8. The Tribunal noted that, even if it were to accept that the Applicant was the target of attacks by BJP opponents, the Applicant could readily move to other parts of India where the BJP has stronger political support. Because of the Applicant’s low profile in the BJP, the Tribunal also rejected his claim that members of the Dawood Ibrahim Gang would hunt him down throughout India to persecute him. The Tribunal noted that the Applicant had not provided a credible basis for such claim and rejected the Applicant’s claims accordingly.

9. The Tribunal noted that the Applicant’s claim of a fear of persecution because he is a member of the “Patel” clan. However, the Tribunal rejected the claim on the basis that “Patel” is a common name in the state of Gujarat and the inference from the Applicant’s claim is that all persons called “Patel” in the state of Gujarat were in danger of being attacked. The Tribunal found that such a claim “lacked veracity” and noted that it pointed out to the Applicant that he had no credible evidence to corroborate such claim.

10. The Tribunal concluded that, on the evidence before it, it was not persuaded that the Applicant has a genuine fear of persecution and therefore concluded that the Applicant’s claims of a fear of persecution for a Convention reason if he were to return to India were not well-founded.

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of an interpreter. Whilst the second named applicant did not attend Court, the Applicant confirmed to this Court that he appeared on behalf of both applicants.

2. The Applicant confirmed that he relied on the amended application filed on 17 January 2007. The grounds of the amended application are as follows:

   “1. The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution the applicant claims.

   Particulars: Section 91 R (1) (b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory. The tribunal concluded that Patel is a common name in the state of Gujrat (sic). Several relatives and non relatives in the State of Gujarat are people who bear the name patel. Indeed, Gujarat who interpreated (sic) for the applicant was also called patel… GB PP115.

   The tribunal failed to contact with Mr Patel, who is actual brother of the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordance with section 424A (1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs. HCA

   2.The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular social group to whom the australia has protection obligation as a member of such group, and therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the correct test by the tribunal. Therefore mis applying the law is in fact failure of the tribunals jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accoudence (sic) with the law and procedures.”

3. Each of the grounds was interpreted for the Applicant and he was invited to make whatever submission he wished in support of each of the grounds. The Applicant had nothing to say in support of any of the grounds nor in support of his application generally.

4. Ground 1 as supported by the particulars appears to complain about the Tribunal’s finding that “Patel” is a common name in the state of Gujarat and that several relatives and non-relatives in the state of Gujarat are people who bare the name of “Patel”. The particular also refers to the fact that the Tribunal noted that the interpreter at the Tribunal hearing was also named “Patel”. However, the Tribunal’s findings are findings of fact and were open to the Tribunal on the evidence and material before it and for which it provided reasons.

5. Otherwise, this complaint is no more than a disagreement with the findings of fact made by the Tribunal. Such disagreement invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

6. The second particular in support of Ground 1 of the amended application relates to a complaint that the Tribunal failed to take steps to contact the Applicant’s brother. However, there is no obligation on the Tribunal that would compel him to contact the Applicant’s brother (Abebe v The Commonwealth (1999) 197 CLR 510 at 576 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]).

7. The Tribunal wrote to the Applicant on 3 August 2006 inviting him to come to a hearing and requesting the applicants to let the Tribunal know whether there were other witnesses from whom the applicants may wish the Tribunal to obtain oral evidence. The letter also informed the Applicant that the Tribunal did not have to receive evidence from any person that is named.

8. In the circumstances, an opportunity was provided to the Applicant to seek to request the Tribunal to allow his brother to give evidence. No such request was made.

9. To the extent that the Applicant’s complaint is an allegation of breach by the Tribunal of s.424A(1) of the Act such a complaint is misconceived.

10. Ground 1 is otherwise a bare assertion that the Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religion.

11. The Tribunal rejected the Applicant’s claim of a fear of persecution by reason of his religion on the basis that in the state of Gujarat the majority of people are Hindus and that the Applicant had not provided any other evidence to support his claims of religious persecution. In relation to the Tribunal’s rejection of the Applicant’s claim that he and his business were targeted because of his religious beliefs, the Tribunal noted that in the Claims and Evidence section of its decision that when the Tribunal asked the Applicant why he had stopped his business, the Applicant had responded that he did not receive payment from customers. The Tribunal noted that it asked the Applicant if there was any other reason why he had stopped his business and noted that the Applicant had responded “no, there is no other reason.” The Tribunal noted that it asked the Applicant if he was sure and he said he was.

12. To the extent that Ground 1 complains about the Tribunal’s finding in relation to the Applicant’s claim of a fear of persecution by reason of membership of a particular social group, being those with surnames “Patel”, this matter has been dealt with above in these Reasons in paragraphs 23 and 28.

13. Otherwise, the findings and conclusions of the Tribunal in respect of those claims were open to it on the evidence and material before the Tribunal and for which it provided reasons.

14. Accordingly, Ground 1 is not made out.

Ground 2

1. The first part of Ground 2 appears to be a restatement of the disagreement of the Applicant with the findings of the Tribunal in relation to his claim of membership of a particular social group, namely persons with the name “Patel”. That matter is dealt with above in these Reasons in paragraphs 23, 28 and 33.

2. Ground 2 otherwise alleges that the Tribunal did not apply the correct test in relation to its consideration of relocation in concluding that the Applicant could relocate in other parts of India.

3. A fair reading of the decision makes it clear that the Tribunal had rejected comprehensively the claims made by the Applicant in respect of persecution by reason of his political opinion or imputed political opinion. The reference by the Tribunal to the possibility of the Applicant being able to relocate to other parts of India where the BJP has stronger political support was no more than an observation and was not made in the context of considering whether or not the Applicant could in fact relocate. There was no obligation on the Tribunal to consider whether or not it was reasonable for the Applicant to relocate to other parts of India having regard to its comprehensive rejection of the Applicant’s claims of a fear of persecution for his political opinion or imputed political opinion.

4. The Tribunal rejected the Applicant’s claim that members of the Dawood Ibrahim Gang would hunt him down and persecute him through India on the basis that he was someone with a low profile within the BJP and the Tribunal did not accept those claims as credible. Again that is a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons.

5. The Tribunal found that the Applicant’s express fear of persecution for the identified reasons was not well-founded. In the circumstances there was no obligation on the Tribunal to proceed to consider the issue of relocation (SZCVC v Minister for Immigration and Multicultural Affairs [2006] FCA 1535 at [28]).

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court, commenced by way of application filed on 30 October 2006, is dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  20 June 2007