SZJQQ v Minister for Immigration
[2007] FMCA 449
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJQQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 449 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – applicant did not attend Tribunal hearing – Tribunal proceeded to decision – not satisfied applicant met criteria for visa. |
| Migration Act 1958, ss.36, 65, 91R, 91X, 425, 426A |
| NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 215 SZCIA v Minister for Immigration & Multicultural Affairs (2006) FCA 238 |
| Applicants: | SZJQQ & SZJQR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3272 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 March 2007 |
| Date of Last Submission: | 9 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3272 of 2006
| SZJQQ & SZJQR |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 15 February 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 3 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 July 2006 refusing the applicants’ application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.
Background facts
The Tribunal described the applicants as follows:
The applicant…was born in Mansa Gandhinagar, India, on 21 August 1971. He stated he was a citizen of India. He indicated he was fluent in Gujarati and Hindi. He stated he could read and write in English. The applicant stated he was a Hindu. He indicated that he had fifteen education [sic] and a Bachelor of Arts degree. He stated he owned his own business in India. … He stated he married on 22 May 1994 and he had a daughter in 1996. He indicated that his daughter and his father were living in India at the time of application.
The applicant’s wife who accompanied the applicant to Australia, completed Section D of the application as a person who did not have her own claims to be a refugee but was included on the application as a member of the applicant’s family unit. She stated she was born in Sabli, India, on 26 April 1976. She stated she was a citizen of India, fluent in Hindi and Gujarati, and a Hindu. The applicant’s wife stated that she completed her education in 1998 and she worked as a teacher. (Court Book (“CB”) page 128)
As the principal applicant is the husband, in these Reasons he will be referred to as the applicant.
The applicant claims to have been persecuted and to fear future persecution in India because of his religious beliefs and activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 128-130). Relevantly, they are:
a)the applicant was an active member of the Vishwa Hindu Parishad (“VHP”) in Gujarat and since 1998 he held the position of treasurer in the town of Mansa. He attended meetings of the VHP Bajarang Dal and the “Rashtriya Seva Sangh” (RSS) who like the VHP were trying to “spread the massage [sic] of unity and protection of Indian culture”;
b)Muslim organisations opposed the VHS and considered it the enemy. One Muslim group, the Student Islamic Movement of India (“SIMI”) considered the applicant the enemy because of his work with the VHP, RSS, and Bajarang Dal. SIMI kept an eye on the applicant and caused some conflicts at work;
c)fanatic activist groups frequently threatened the applicant on the phone but he ignored the threats and continued to work for the VHP. The fanatic activist groups tried to murder him on 18 April 2005 but he fled, hid in a friend’s car, and was able to get to a “safe place”;
d)after an investigation into the attack, the police “could not find anything” so the applicant returned to his usual daily routine. He was attacked again by SIMI activists during a festival procession whilst he and his wife were on a truck representing the VHP in Mansa. The applicant and his wife were able to flee to safety;
e)the applicant’s wife asked the applicant to leave the VHP but he “ignored everything” and continued to be involved with the group. He was again attacked by SIMI activists and he was seriously injured, requiring 10 to 12 days’ hospitalisation. His wife was also injured, but not seriously;
f)after he was discharged from hospital he went to the police to report the incident and to complain against SIMI activists. But again, the police “could not do anything”.
The Tribunal set out the applicant’s description of his dealings with the police inserting bracketed amendments:
…police could not do anything in investigation[,] police were not replying [to] me properly[,] I used to visit police station again and again[,] I was in need of protection but nothing was being done by police. After some days police came [to] my home and spoke to me that I had done a serious crime and police were asking me [a] lot of things and [pressuring] me to lodge a false complain against me. Because police were [pressured] by political people. We were getting harassed by police and scared by SIMI activists we had no…other way to save our lives. We cannot move to any other place in India…because they can find me from any where[,] they are very strong and [influential] people[,] they have international help and backing (ff.59-60). (CB 129-130)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant presented his claims poorly with only one vague statement to the Department and no information in support of his review application;
b)the applicant did not provide any meaningful details regarding his involvement with VHP or his difficulties with Muslim extremists;
c)the applicant did not give meaningful details of his claim that the police did nothing to assist him;
d)although the applicant indicated that influential people wanted to harm him, he did not identify those people or say why they wanted to harm him;
e)the applicant failed to provide details and meaningful information in support of his claim to be an active and committed member of the VHP;
f)on the information it had, the Tribunal could not be satisfied that the applicant had been, and would be in the future, an active and committed member of the VHP;
g)the Tribunal could not be satisfied that the applicant had attracted the adverse interest of Muslim extremists in the past or would in the future;
h)the Tribunal was not satisfied that the applicant would attract the adverse interest of the authorities or anyone else in India.
The Tribunal said:
The applicant was put on notice that the Tribunal was not satisfied by the evidence he provided in support of the application. He did not provide further information despite ample opportunity to do so nor has the applicant given the Tribunal the opportunity to explore his claims at a hearing. Many questions regarding his previous and future circumstances remain unanswered. In the absence of further information, and in view of the above findings, the Tribunal is not satisfied by the evidence that the applicant has a well-founded fear of persecution in India for reasons of political opinion or any other Convention reason. (CB 130-131)
Proceedings in this Court
All the grounds of the application are not clearly expressed but they appear to be as follows:
a)the Tribunal wrongly applied the law in relation to the seriousness of harm that constitutes persecution under s.91R(1)(b) and (c) of the Act;
b)the Tribunal failed to give the applicant “more opportunities”;
c)the Tribunal dealt with that part of the applicant’s claim relating to state tolerance of and complicity in his claimed persecution;
d)the Tribunal applied an incorrect test when finding that the applicant could relocate within India.
As noted in the Minister’s submissions, these grounds misunderstand the nature of the Tribunal’s decision. In some respects they also mis-state its decision. Rather than make positive findings, the Tribunal has concluded that it did not have enough information to make positive findings. Its decision is that because too many questions remained outstanding, it could not reach the level of satisfaction necessary to conclude that Australia has protection obligations to the applicant.
The grounds pleaded in the amended application do not address the basis of the Tribunal’s decision. Nevertheless dealing first with the applicant’s asserted grounds of review:
The Tribunal wrongly applied the law in relation to the seriousness of harm that constitutes persecution under s.91R(1)(b) and (c) of the Act
The evidence provided by the applicant to the Tribunal did not satisfy the Tribunal that he had attracted the adverse interest of Muslim extremists. Consequently, absent the necessary factual foundation the need for a consideration of the test contained in s.91R(1)(b) and (c) did not arise. In this regard it should be observed that the Tribunal referred to the existence of s.91R and the fact that it qualified some aspects of Article 1A(2) for the purposes of the application of the Act and the Migration Regulations 1994.
The Tribunal failed to give the applicant “more opportunities”
There was no evidence to suggest that the applicant had sought “more opportunities”. However, having provided the applicant with an invitation to attend the hearing pursuant to s.425 of the Act but the applicant not actually attending it was empowered to proceed to a determination of the application by virtue of s.426A. No error is demonstrated in the Tribunal proceeding to make a decision in such circumstances.
The Tribunal dealt with that part of the applicant’s claim relating to state tolerance of and complicity in his claimed persecution
The applicant did not elaborate on this ground in his oral submissions to this Court. He filed no written submissions. However, in light of the Tribunal’s inability to be satisfied that the applicant had attracted the adverse interest of Muslim extremists there was no underlying finding of persecution in respect of which any state tolerance of or complicity in the claimed persecution could be relevant. In any event, the Tribunal also stated that it could not be satisfied on the evidence provided by the applicant that the authorities in India either were unable or unwilling to assist him.
The Tribunal applied an incorrect test when finding that the applicant could relocate within India
Contrary to the assertion implicit in this ground, the Tribunal did not find that the applicant could relocate within India. It made reference to the applicant’s claim that he could not avoid the harm he anticipates by relocation within India but, again, as the Tribunal was not satisfied that the applicant had attracted the adverse interest of Muslim extremists it was not called upon to make a decision whether relocation within India was a viable option for the applicant.
Generally
The Tribunal was entitled to proceed to make a determination on the application as it had complied with the relevant provisions of the Act. As it was not in a position to decide the review in the applicant’s favour on the basis of the material before it, and the other requirements of s.425(2) did not apply, the Tribunal was required by s.425(1) to invite the applicant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review.
In this case, the Tribunal wrote to the applicant on 24 August saying:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Hearing of the Tribunal
We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
It is to be noted that the applicant responded to the Tribunal’s invitation to attend the hearing, and this is recorded in the Tribunal’s “Response to Hearing Invitation” reproduced at CB 115, so there is no issue that he was unaware of the proposed hearing. However, not only did the applicant not attend, as is recorded by the “RRT Hearing Record” reproduced at CB 117 and as referred to in the decision of the Tribunal at CB 128, but, as is recorded at CB 128, he did not contact the Tribunal regarding his failure to attend. Consequently, pursuant to s.426A the Tribunal was entitled to proceed to make its decision: NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208.
Section 36(2) of the Act provides:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Section 65(1) of the Act provides:
After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
The combined operation of those sections is discussed by the Full Court of the Federal Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 215 at [16] where the Court said:
It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
However, the Tribunal had insufficient evidence to lead it to a conclusion different from the delegate’s. As Allsop J said in SZCIA v Minister for Immigration & Multicultural Affairs (2006) FCA 238 at [12]:
In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:
On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
This is a case where, through his non-attendance at the Tribunal hearing, the applicant denied himself the opportunity to put further information to the Tribunal and denied the Tribunal the opportunity to consider such information in the context of the applicant’s claim to fear persecution for a Convention reason. As the Tribunal said, many questions regarding the applicant’s previous and future circumstances remained unanswered, and in the absence of further information, and given its findings concerning the poor presentation of the applicant’s claims and the vague content of the information supplied, it was not in a position to be satisfied by the evidence and no error was demonstrated in this respect. Not being satisfied that the applicant met the criteria set out in s.36(2), s.65(1) required the Tribunal to affirm the delegate’s decision and no error is demonstrated in this connection.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 5 April 2007