SZJPO v Minister for Immigration

Case •

[2007] FMCA 1801

•

16 October 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJPO & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1801
MIGRATION – Review of Refugee Review Tribunal decision – adjournment request refused – Tribunal found harm did not amount to serious harm as required by s.91R(1)(b) – Tribunal found threats were not for a Refugees Convention reason – impermissible merits review – whether conduct amounts to serious harm is a matter for the Tribunal – no evidence of bias – no evidence of misinterpretation – no jurisdictional error – application dismissed.
Migration Act 1958, ss.91R(1)(b), 36(2), 36(2)(b), 91R.
Randhawa v Minister for ImmigrationLocal Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VDAU v Minister for Immigration and Indigenous Affairs [2005] FCAFC 32
VFAB v Minister for Immigration and Indigenous Affairs [2003] FCAFC 872
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
First Applicant: SZJPO
Second Applicant: SZJPP
Third Applicant: SZJPQ
Fourth Applicant: SZJPR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3188 of 2006
Judgment of: Nicholls FM
Hearing date: 16 October 2007
Date of Last Submission: 16 October 2007
Delivered at: Sydney
Delivered on: 16 October 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. Pursuant to Rule 11.11 of the Federal Magistrates Court Rules 2001, the first named applicant be appointed litigation guardian for the fourth named applicant.

  3. The application filed on 1 November 2006 and amended on 9 March 2007 is dismissed.

  4. The first, second and third named applicants pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3188 of 2006

SZJPO & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT


(Ex Tempore: Revised from Transcript)

  1. I have before me an application filed in this Court on 1 November 2006 under the Migration Act 1958 (“the Act”), and amended on 9 March 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 September 2006, and handed down on 5 October 2006, which affirmed a decision of a delegate of the respondent Minister to refuse protection visas to the applicants.

Background

  1. The applicants are a husband (“the applicant”) (SZJPO), wife (“the applicant wife”) (SZJPP) and their two children (“the applicant daughters”) (SZJPQ and SZJPR). The applicants are citizens of India who arrived in Australia on 10 March 2006 and applied for protection visas on 21 April 2006. On 25 May 2006, a delegate of the respondent Minister refused to grant the protection visas, and on 20 June 2006 the applicants sought review of that decision.

Applicant’s Claims to Protection

  1. Before the Tribunal, and the Minister’s department, the applicant wife and applicant daughters did not assert any independent claims of their own. Their claims rested on those of the applicant husband and they applied as members of his family. I note, in this regard, material reproduced in a bundle of relevant documents filed by the first respondent (the Court Book (“CB”)). The applicants’ claims are reproduced in their application for a protection visa (CB 1 to CB 26), in supporting documents (including a statement of the applicant at CB 27 to 33) (CB 27 to CB 81), and in their application for review (CB 95 to CB 107).

  2. The applicant claimed to fear persecution and harm from his former business partner whom he claimed was involved in illegal activities and who was a member of the Congress Party in India. The applicant, who is from Gujarat, claimed that he was a member of BJP and that as a result of the intentions of his former business partner, “influential politicians involved with him and the persons of high capability...” were “determined to destroy” him completely. He further claimed that he filed a civil suit against his “detractors”, they threatened and attacked him. The applicant complained that the police and politicians were “hand in glove”, and that if he were returned to India he would be in danger due to the police, politicians and anti-social elements. He claimed he had fears for the safety of not only himself, but for his family. The applicant made reference to a number of incidents including one where he claimed that those whom he feared had tried to kill his daughter and another where he said he had been harmed arising out of an involvement in a motor vehicle accident.

  3. I note that the applicant gave evidence to the Tribunal at a hearing on 4 September 2006. Also present at the hearing was his migration adviser, Mr C Jayawardena. The Tribunal's account of what occurred at the hearing is reproduced in the Court Book as part of its decision record.

The Tribunal

  1. The Tribunal’s “Findings and Reasons” are reproduced in its decision record at CB 147 to CB 150. The Tribunal found that whilst there were inconsistencies in the applicant’s claims in his protection visa application and oral evidence, it gave him the benefit of doubt in this regard and relied on his oral claims as made at the hearing.

  2. The Tribunal also found that the applicant’s claims of past harm involving an attack on him whilst driving, that his daughter was almost run over, and threats made against him did not amount to serious harm. The Tribunal therefore found that these incidents/threats did not fall within s.91R(1)(b) of the Act, and did not give rise to any real chance of persecution in the reasonably foreseeable future. In the alternative, the Tribunal found that even if it were to accept that the threats against him were serious, it did not accept the threats were for reasons of his political opinion, membership of any particular political social group or any other Refugees Convention reason.

  3. The Tribunal also considered the issue of relocation “for the sake of completeness” and found that it would be reasonable for him to relocate to a different part of India.

  4. In all therefore, the Tribunal was not satisfied the applicant satisfied the criterion under s.36(2) of the Act, such that a protection visa must be granted to him. In relation to the applicant wife and applicant daughters, the Tribunal found that as there was no basis for a grant of a protection visa to the applicant, they did not meet the criterion under s.36(2)(b) of the Act.

Hearing before the Court

  1. At the hearing before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Gujarati language.


    Mr T Reilly of Counsel appeared for the first respondent.

  2. The applicant confirmed to the Court that he was relying on his amended application. He nonetheless sought an adjournment of the hearing today before the Court. His reasons were that he had some expectation that his adviser Mr Jayawardena would assist him before the Court and that he had further documents to submit to the Court.

  3. In refusing the request for an adjournment, I am satisfied that the applicant has had more than a reasonable opportunity to prepare for this hearing. It is, as Mr Reilly correctly submitted, more than one year since he had filed his application in this Court complaining about the Tribunal’s decision. It is ten months since the applicant attended the first Court date in this matter, and a Registrar of this Court made orders, orders to which the applicant agreed, which set the hearing down for today.

  4. Even if the Court were to accept the applicant’s explanation that he had some expectation that Mr Jayawardena was going to assist him, or was acting on his behalf, on the applicant’s own submission, he has had at least three months since he was informed that Mr Jayawardena was not going to assist him to prepare for the hearing. The applicant’s explanation that he was working and was unable to attend to this matter is essentially a matter for him, and his choice, but this is not an adequate explanation as to why he is not prepared for this hearing. This is especially so in light of the importance of his refugee claims to him.

  5. In all, I am not satisfied with the applicant’s explanation that he has provided as to why he has not prepared for the hearing. The applicant was provided with a reasonable opportunity for this purpose. Nor am I satisfied that the matters which the applicant alluded to, and for which purpose he sought the adjournment, are satisfactorily explained. The applicant claimed that he wished to provide more documents, but did not specify the nature of the documents or how they were intended to assist him before the Court. He made some general references to dissatisfaction with the Tribunal’s account of what occurred at the hearing, but again provided no detail. From what is before me, I cannot see any useful purpose in delaying this matter any further. The application for an adjournment is refused.

  6. The applicant’s wife and daughters were not in Court. In relation to the youngest of the two daughters, the fourth-named applicant, with the consent of the applicant I appointed him as litigation guardian pursuant to Rule 11.11 of the Federal Magistrates Court Rules 2001. In relation to the applicant wife and the adult applicant daughter, the applicant stated that as they had not made any separate claims before the Tribunal, he had attended today with their understanding that he was to represent their interests before the Court and speak on their behalf.

Application to the Court

  1. In the amended application to the Court, the applicants sought review on the following (particularised) grounds:

    “Ground One

    (a) The Tribunal failed to evaluate the Applicant’s level of harm as a result of an attack suffered by him from his enemies because of the following finding made by the Tribunal –

    ‘The Applicant claimed that on one occasion he was attacked as he was driving home in his vehicle. However, whilst his vehicle was damaged he did not suffer any physical injuries. He was later compensated for the damage by his car’s insurer and did claim to have suffered significant economic hardship. The Tribunal is not satisfied that this incident amounted to serious harm’. (CB page 147, para 05 start)

    The Applicants submit that the Tribunal failed to evaluate that the said attack was motivated with a view to causing death or serious harm by his attackers therefore, just because he escaped that serious harm, the Tribunal could not have downgraded the attack as ‘not serious harm’. Hence the Applicants submit that the Tribunal failed to make a proper ‘jurisdictional assessment’ under sec. 91R of the Migration Act 1958 as to the Applicant’s real ‘fears’ or the ‘real chance’ of facing such serious harm in the future’. Hence it was a jurisdictional error made by the Tribunal.

    (b) Ground Two

    That the Tribunal failed to assess the cumulative effect of the fears suffered by the Applicant’s family members forming part of the refugee claims and distancing from the ‘refugee criteria’ in assessing the claims made by the Applicant’s contrary to the Mandatory review function imposed by sec. 414 of the Migration Act and the constructive and articulate manner as set out in sec. 415 of the Act, namely: -

    ‘Nor is the Tribunal satisfied that the incident involving his daughter was anything other than an accident. The applicant’s description of incident as deliberate and something more than an accident was based purely on a belief harboured by the Applicant and his daughter. She had been unable to identify the car or its occupants and there was nothing else in the Applicant’s evidence to suggest that this incident was anything other than an accident. Even if the Tribunal were to accept, which it does not, that the incident has occurred for the reasons provided by the Applicant, the Tribunal is of the view that the incident was designed to frighten and intimidate the Applicant and those behind the incident did not seriously intend to harm the Applicant’s daughter’. (CB 147, para 05)

    The Applicant submit that despite the fact that Tribunal having accepted the said ‘incident was designed to frighten and intimidate the Applicant’, had either voluntarily or involuntarily decided to avoid it being given due weightage as an incident of ‘attempted serious harm or persecution’.

    Hence the Applicant submit that such avoidance of claims by the Tribunal was amounting its ‘bias’ or ‘prejudice’ towards the Applicants refugee claims and therefore amounted to a ‘jurisdictional error’ in term of the Full Federal Court Decision in NADH of 2001 v MMIA and of the High Court decision in Craig v SA.”

  2. The applicant raised a number of matters before the Court today in complaint about the Tribunal's decision, in addition to what was set out in the amended application. The applicant stated:

    1)He was not happy with the Tribunal decision and objected to the Tribunal's finding on relocation. The applicant stated that it was very difficult for him to relocate.

    2)The Tribunal did not properly listen to him regarding his business partner and involvement with political groups and did not consider his case in that regard.

    3)He made reference to the Tribunal's noting of the matter of Randhawa v Minister for ImmigrationLocal Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at CB 148 and said that “maybe” this case was similar to his situation.

    4)He had been attacked – and I took this to be a reference to the incident that had occurred relating to a motor vehicle incident in which he had been involved. The applicant complained that the Tribunal considered this only as an accident because he was able to claim from insurance in relation to this matter. The applicant took issue with the Tribunal's claimed finding and insisted that he had told the Tribunal that it was an “attack”, and not an “accident”. He therefore complains now about what he said the Tribunal found in that regard.

  3. The applicant also complained with reference to various parts of the Tribunal's decision record:

    1)First, with what appears at CB 145.8, the applicant expressed concern relating to what was said at the hearing as to which of the two parties (that is, the Congress Party or BJP party), were in government and had influence in his home state of Gujarat. The applicant did not agree with the Tribunal that it was safe in Gujarat.

    2)Second, with reference to CB 145.4 to CB 145.5, the applicant made reference to the Tribunal’s discussion (at the hearing) relating to the issue of relocation. The applicant claimed that what he was reported as saying in the context of relocation (the Tribunal's report that he said he would be found within a week), was a misinterpretation of what he had said.

    3)Third, with reference to CB144.3, the applicant said he had some objection but could not explain properly to the Court because he could not recall what was said and therefore needed to listen to the tape of the Tribunal hearing. The applicant sought more time to enable him to listen to the tape. I had already, by this time, dealt with the issue of the refusal of the adjournment application. I did not see the applicant’s request for further time to listen to the tape of the Tribunal hearing, in all the circumstances referred to above, as being sufficient cause to revisit the decision to refuse the adjournment.

Consideration

  1. The Tribunal's decision to affirm the delegate's decision, the subject of the review before it, relied on three separate and independent bases to support its ultimate conclusion. First, the Tribunal found that the harm that the applicant claimed to have suffered did not amount to “serious harm” as required by s.91R(1)(b) of the Act. Section 91R provides that Article 1A(2) of the Refugees Convention does not apply in relation to persecution unless the persecution involves “serious harm”. Second, and in any event, the Tribunal found that the threats claimed by the applicant to have been made against him were not for a Refugees Convention reason. Third, the Tribunal also found that the applicant and his family could safely relocate to another part of India.

  2. I can only agree with Mr Reilly that the Tribunal's findings were open to it on what was before it. Further, it gave reasons for those findings. To challenge the Tribunal's findings in this regard would be for this Court to engage in impermissible merits review. Clearly, the Court cannot engage in that activity (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

  3. The amended application contains two grounds. By way of the first ground the application complains that the Tribunal misapplied s.91R of the Act. The application complains that the Tribunal "downgraded" the attacks on the applicant such as to say they were not serious harm. It may be that the applicant takes issue with the Tribunal's relevant analysis that those who made threats did not seriously intend to act upon them. I note in particular in that regard what the Tribunal set out at CB 147.9.

  4. It is the case, however, that whether the particular conduct (that is, the claimed actions and threats of those whom the applicant says he fears) amounts to serious harm for the purposes of s.91R of the Act is a question of degree, and fact, to be determined by the Tribunal, by applying the statutorily required “serious harm” concept to the facts before it. Support for this proposition I note, as Mr Reilly records in his submissions, can be found in the matter of VDAU v Minister for Immigration and Indigenous Affairs [2005] FCAFC 32 at [24]. As Mr Reilly correctly submits, this ground argues with the Tribunal's factual assessment in this regard and again seeks impermissible merits review. I cannot discern jurisdictional error as it arises from this ground.

  5. In relation to the applicants’ second ground, I can only agree with Mr Reilly, that it is difficult to understand exactly what the nature of the complaint is. If by way of the second ground, the applicants seek to complain about the Tribunal's finding in relation to the incident involving the adult applicant daughter, and the finding that they  had not suffered “serious harm” in this regard, then this fails to reveal jurisdictional error for the reasons that I have already stated above in relation to the applicants’ first ground.

  6. As to the allegation of bias, there is simply no basis on what is before the Court to support such an allegation. In putting forward this complaint the applicant points only to the Tribunal's decision record in support. I note that such a serious complaint can generally not be made out with reference only to the Tribunal's decision record (VFAB v Minister for Immigration and Indigenous Affairs [2003] FCAFC 872 at [12] per Kenny J). In any event, the test for bias is well settled (see for example: Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507). With reference to the test enunciated in that matter, the allegation of bias, being that the Tribunal did not bring an open mind to the proceedings, is simply not made out on what is before the Court.

  7. The Tribunal's decision was based on three separate lines of analysis leading to three reasons for affirming the delegate's decision. I cannot discern jurisdictional error in any one of these three bases and note of course that only one of the three, in any event, free of jurisdictional error, would be capable of sustaining the Tribunal's ultimate decision (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [27]-[29], [85]-[90], [91] and VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).

  1. The applicant was given the opportunity to put his claims at the hearing before the Tribunal. The only account of what occurred at the Tribunal hearing before the Court now reveals, from what was said at that hearing when looked at with the Tribunal's analysis, that the Tribunal dealt with each of the applicant's claims and aspects of claims that were put before it. I note further at the hearing that the Tribunal specifically raised the issues of relocation and the lack of a Refugees Convention nexus in relation to the applicant's claims. The applicant, with his adviser present at the hearing, was given the opportunity to address these issues, as well as the elements of his claims relating to “serious harm”. I can only note again that while some of the applicant's claims were found to be “vague”, the Tribunal nonetheless gave the applicant some benefit of the doubt.

  2. In relation specifically to the various matters raised by the applicant before the Court today, to the extent that the applicant complains about what he says occurred at the Tribunal hearing, and that he was misinterpreted in various ways, the applicant has had more than ample opportunity to provide relevant evidence to this Court to contradict the Tribunal's account of what it said occurred at the hearing. That the applicant chose to leave matters in this regard, including the obtaining of Tribunal tapes, until now is a matter for the applicant. I am satisfied that the applicant has had more than a reasonable opportunity to put his evidence before the Court and has not done so. On the state of the evidence before the Court, therefore, the applicant's complaints in this regard do not reveal error on the part of the Tribunal.

  3. In any event, with reference to what is set out at CB 145, the applicant complains that he wanted to say to the Tribunal at the hearing that the party with whom those who were opposed to him were connected (that is, the Congress Party), while they were not in government in Gujarat, had influence in that state. The applicant complained that he had wanted to tell the Tribunal that the Congress Party is powerful. I can only note, that in any event, this was actually put to the Tribunal by the applicant's adviser at the hearing. The adviser is reported in the Tribunal’s account of the hearing, as having “added” that although the Congress Party is not in government in Gujarat, it is in power at the national level and is very powerful (CB 145.7).

  4. Further, the applicant complained that he did not agree with the Tribunal that it was safe in Gujarat. I note that the Tribunal in any event directly dealt with this issue in its analysis (CB 148.5). It said that there was no evidence in the sources consulted to indicate that BJP members and supporters, in context, this involved the applicant, being persecuted by members and supporters of the Congress Party in Gujarat. This was a finding, given the independent evidence that was before it, that was clearly open for the Tribunal to make. While the applicant may not agree with the Tribunal's finding, that disagreement does not, on its own, reveal jurisdictional error in what the Tribunal has done.

  5. The applicant also complained (with reference to CB 145) that he was misquoted or misinterpreted in relation to the discussion about relocation. He was reported as having said that he would be “found within a week”. The applicant claims that what he actually said was that they could search for him anywhere in India. I note, first, again, the applicant has provided no evidence to this Court to challenge the Tribunal's account of what was said at the hearing.

  6. But, in any event, there appears to be little difference between what I understood of what the applicant was seeking to put to the Court now about what he said to the Tribunal, and what the Tribunal understood that the applicant said at the time. The Tribunal said that the applicant had said that it would be hard for a family to hide in India and he would be “found within a week”. In terms of the sense of fear that the applicant was seeking to convey, this clearly included the understanding that he could be sought out and found if he were to seek to hide anywhere in India.

  7. As to the applicant's complaint with reference to what is set out at CB 144.3, the applicant's claim that he could not explain properly because he could not recall what his objection was and that he needed to listen to the tape. Again, I can only note that the applicant has had more than an ample and reasonable opportunity to have prepared for the hearing, and that he has not done so is a matter for the applicant.

  8. The applicant generally objected to the Tribunal's finding regarding relocation. He made reference to the Federal Court matter of Randhawa as referred to in the Tribunal's decision record. I did not understand the applicant to be taking issue with the Tribunal's reference to that case, but rather claimed that his situation was similar to what was in Randhawa. In any event, again I agree with Mr Reilly's submission today that the Tribunal's finding in relation to relocation was open to it for the reason that it gives and that no jurisdictional error is evident, bearing very firmly in mind what the High Court recently said in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 on the issue of relocation and how Tribunals are expected to approach consideration of this issue.

  9. The applicant also complained today that the Tribunal misunderstood, and was “wrong” in its finding in relation to the incident involving his motor vehicle and that two or three people wielding sticks attacked his vehicle and it had been damaged. He took issue with the Tribunal’s finding that this was an “accident” and based this on its noting that he had been able to recover insurance for this damage.

  10. As Mr Reilly submits, while these matters were discussed at the Tribunal hearing, in the applicants’ claims there were two incidents involving motor vehicles. One involved the attack on his vehicle while he was drinking. The other involved the adult applicant daughter and the claim that a car had accelerated towards her, and while she did not know who was responsible, “they” had tried to kill her.

  11. In relation to the incident involving the applicant’s motor vehicle, the Tribunal found it was not satisfied that this instance of harm amounted to “serious harm”. The Tribunal's finding in relation to the “accident” was actually made in relation to the incident involving his daughter. It was in relation to this incident that the Tribunal found that it was not satisfied that this incident was anything other than an accident. Again, on what was before it, both findings were open to the Tribunal to make.

  12. I note that in relation to the applicant wife and applicant daughters, the Tribunal found that as their application depended on the outcome of the applicant husband's application, that they therefore could not satisfy the relevant criterion set out in s.36(2)(b) of the Act. I cannot discern jurisdictional error in the Tribunal's finding as it relates to them.

  13. In all, therefore, I cannot discern jurisdictional error as it arises from the amended application for review on which the applicants rely, nor from what the applicant put to the Court today, nor otherwise. I therefore dismiss the application made to the Court.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls  FM

Associate: 

Date:  30 October 2007

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