SZJUM v Minister for Immigration
[2007] FMCA 891
•4 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 891 |
| MIGRATION – Country information not covered by s.424A(1) – “what if I am wrong” test – allegation of bias must be clearly made and distinctly proven. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 |
| First Applicant: | SZJUM |
| Second Applicant: | SZJUN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3573 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 4 June 2007 |
| Date of last submission: | 4 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr S. Lloyd |
| Solicitor for the Respondents: | Mr O. Young of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
The applicants are to pay the costs of the first respondent fixed at $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3573 of 2006
| SZJUM |
First Applicant
| SZJUN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 4 December 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 4 May 2007.
The first named applicant was born on 9 November 1976; his wife (who is the second named applicant in the proceedings) was born on
2 November 1977. Both applicants claim to be from India, of Gujarati ethnicity and Hindu faith.
The applicants’ son remains in India.
The applicants arrived in Australia on 3 June 2006 and lodged protection visa applications with the Department of Immigration and Multicultural Affairs on 13 June 2006. The applicant wife did not submit her own claims to be a refugee, but is included in the application of her husband (the “applicant”). In this application he claimed that in 2002 he was attacked and his hardware shop was destroyed by a large gang of rioting Muslims (CB 58-9). The applicant claimed that Muslims demanded money from his business, but when he was unable to make the payments they removed the stock from his store which forced him to close down (CB 61-3). The applicant claimed that members of his family also suffered beatings and that he was attacked several more times (CB 65-8). The applicant claims to have suffered other attacks.
This application was refused by a delegate of the first respondent on 14 July 2006 (CB 76).
On 4 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 87). The applicant gave oral evidence before the Tribunal on
19 October 2006, at which time he maintained the claims made in his original protection visa application.
By decision signed on 20 October 2006, the Tribunal affirmed 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 125) (Highlighting added):
The applicants are claiming that the applicant husband’s store was destroyed in riots in 2002 and that since then they have been threatened by Muslims who know where they live and know that they are well off, and that the police have not provided them with protection.
The Tribunal is prepared to accept that their store was destroyed in the 2002 riots and that they have been threatened by Muslims since then. The Tribunal finds that, in their particular circumstances, it would be reasonable for them to relocate to another Indian city, such as Mumbai or New Delhi, where they could live safely. The Tribunal has considered the evidence provided by the husband at the Tribunal that he believed that the financial environment in other Indian cities might not be as profitable for him but finds that any financial hardship the applicant might suffer in relocating and investing his money elsewhere in India, would not be serious enough as to make such an act of relocation unreasonable.
In light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for reason of religion or any other Convention reason. Therefore the Tribunal finds their fear is not well founded.
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 relied on independent country information and did not share this information with me.
(2)This was in breach of s.424A of the Migration Act as it failed to give information it relied on.
(3)The Tribunal did not consider relocation issues and how this would affect the applicant. The Tribunal did not address the applicant’s fears and was guilty of procedural unfairness.
The applicant’s amended application set out the following grounds and particulars:
(1)The second respondent erred in failing to properly consider the issue of relocation (in circumstances where relocation was an important consideration).
Particulars:
1.1The second respondent finding “The Tribunal finds that, in their particular circumstances, it would be reasonable for them to relocate to another Indian city, such as Mumbai or New Delhi, where they could live safely” in its decision (RRT decision page 8.2).
1.2The applicant submits that other than considering the applicant’s business background the Tribunal has erred in not considering the reasonableness and practicality of relocation as decided in leading cases such as Randhawa, NAIZ, SZBJI cases.
1.3The RRT in making other errors such as in putting irrelevant and outdated country information to test the applicant’s claims against the backdrop of “Freedom of Religion” and “Societal Abuses and Discrimination” displayed a lack of jurisdictional direction (RRT decision page 5.2 to page 8.1 of the decision record).
(2)The second respondent committed a jurisdictional error by failing to review the adequacy and effectiveness of State protection in accordance with the Migration Act 1958 instead relying on what the applicant had to say in direct response to the Tribunal’s questions.
Particulars:
2.1The applicant could only provide answers to the direct questions posed to him by the Tribunal. The Tribunal never raised the issue of effective State protection and therefore was jurisdictionally wrong in assuming that the applicant could readily avail himself to State protection.
2.2The applicant submits that instead of making proper enquiries in affirming the delegate’s decision, the second respondent relied upon the answer of the applicant to pointed questions in finding or assuming the adequacy and effectiveness of State protection.
2.3The applicant submits that without determining the effectiveness of State protection, the Tribunal was in jurisdictional error because it failed to address one of the basic tenets of refugee applications; that is whether there is adequate State protection available.
(3)The second applicant failed to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to all adverse findings and inconsistencies in accordance with the requirements in section 424A of the Migration Act 1958.
Particulars:
3.1The second respondent relied on the information before the Department and the Tribunal (RRT decision page 4.4). The Tribunal also relied on ‘other material available to it from a range of sources’ (RRT decision page 4.4).
3.2The second respondent did not give the Applicant written notice in accordance with sections 424A and 441A of the Act of particulars of all information it considers would [be] the reason, or part of the reason, for affirming the decision that is under review.
3.3 A statement to the effect that the information could be the reason or part of the reason, for affirming the decision under review ought to have been given to the applicant in the interest of procedural fairness.
3.4 An explanation from the Tribunal was called for in ensuing that the applicant understood why the information was relevant to the review and in particular that the information would be used in relation to the general assessment of the credibility of the applicant.
3.5 The Tribunal in not according the applicant this opportunity was guilty of jurisdictional error.
(4)The Tribunal’s decision is infested with jurisdictional error due to the respondent [sic applicant] being denied fair hearing.
Particulars:
The applicant submits that the Tribunal erred and denied the applicant fair opportunity to present his case pursuant to the Migration Act and in particular pursuant to section 424A of the Act. The applicant submits that subject failure to allow the applicant an opportunity to fairly present his case amounts to jurisdictional error.
(5)The second respondent misapplied the Rajalingam test.
Particulars:
5.1The second respondent failed to address that the certainty of claims/events may have happened and instead simply proceeded to reject the claims in breach of the test in the Rajalingam case and earlier cases (“What if I am wrong?” test). The applicant submits that the second respondent Tribunal erred in relation to the assessment of incidents/claims that had occurred and that which could not be proven by the applicant.
5.2The applicant claims that instead of the Tribunal directing its questions to fears, attacks, violence suffered by the applicant etc, the Tribunal steered the questions to its own agenda and concentrated on the applicant’s business background and how he could afford to travel to Southeast Asia (RRT decision page 4.7). The applicant contends that this amounted to procedural fairness and thus constituted a jurisdictional error.
Findings of the Court as to the grounds in the application
Ground one complains that the Tribunal relied on country information which it “did not share with me.” Ground two alleges that ground one was a breach of s.424A. The Court finds that the Tribunal was entitled to rely on country information (See NAHI (post) at [11]: “There can be no objection in principle to the Tribunal relying on country information.”) Country information is covered by the exception in s.424A(3)(a). Grounds one and two are rejected.
Ground three alleges that the Tribunal did not consider the relocation issue and how this would affect the applicant, that it did not address his fears and denied him procedural fairness. It is clear from its decision that the Tribunal considered the relocation issue (CB 121.10). At CB 122.2 the he Tribunal recorded the applicant’s evidence that he could not relocate to Mumbai or New Delhi because “he would have difficulties investing there because of property costs”. The applicant said “he did not want to stay in India because of the financial problems of running a business there” (CB122.2). As a result, the Tribunal found that the financial hardship the applicant might suffer would not be such as to make such an act of relocation unreasonable. That was a finding of fact properly open to the Tribunal, and is not subject to review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Holt v Comcare [2002] FCA 1484 at 21; Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal therefore considered the relocation issue and how it would affect the applicant. The Tribunal clearly addressed the fear of relocation expressed by the application. There is nothing to show that the applicant was denied procedural fairness. Ground three is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal failed to consider properly the issue of relocation. It is alleged that the Tribunal failed to consider the reasonableness and practicality of relocation. The Tribunal did consider those issues and found that relocation was not unreasonable. The question of practicality was addressed by the Tribunal when it was considering the applicant’s financial reasons for not wanting to relocate.
The applicant alleges that the Tribunal relied on irrelevant outdated country information. The country information relied on (CB 122) was released on 8 March 2006, and the hearing before the Tribunal took place on 19 October 2006. There is nothing to establish that the country information was outdated or irrelevant. Ground one is rejected.
Ground two alleges that the Tribunal failed to consider the adequacy and effectiveness of State protection, and relied instead on the applicant’s responses. The Tribunal was entitled to rely on the applicant’s responses. The need to consider State protection was eliminated by the Tribunal considering the applicant’s reasons for not wanting to relocate, and its finding that the applicant did not have a well-founded fear of persecution for reason of religion or any other Convention reason. No breach of the Migration Act occurred. Ground two is rejected.
Ground three alleges breach of s.424A. Particular 3.1 complains that the Tribunal relied on “information before the Deparment and the Tribunal (decision page 4.4)… and other material…from a range of sources.” It is clear that the reason for the Tribunal’s decision to affirm the decision of the delegate was its finding that relocation was not unreasonable. In reaching that conclusion it relied on the applicant’s evidence (which is excepted under s.424A(3)(b)) and country information (which is excepted under s.424A(3)(a)). It is not apparent that the Tribunal relied on any other information as a reason for its decision. The Court finds no breach of s.424A.
Particular 3.2 alleges again a breach of s.424A. This allegation is dismissed for the reasons already expressed.
Particular 3.3 complains that a statement should have given to the applicant setting out the reason or part of the reason for affirming the decision. Such a statement is necessary only where there is “information” which calls for disclosure under s.424A. That did not apply here. This particular is rejected.
Particular 3.4 complains that s.424A was breached because the Tribunal did not ensure the applicant understood why the information required to be disclosed under s.424A was relevant, in particular as to the credibility of the applicant. The Tribunal did not make, or rely on, an adverse finding of credibility of the applicant. As there was no “information” which was required to be disclosed under s.424A, no statement as to its relevance was required. This particular is rejected.
Particular 3.5 alleges procedural error in the Tribunal failing to comply with s.424A. The Court repeats its findings that s.424A was not breached. This particular is rejected.
Ground four alleges that the applicant was denied a fair hearing, through a breach of s.424A, and denied an opportunity to fairly present his case. The Court repeats its findings that s.424A was not breached. The applicant attended the hearing and gave evidence (CB 121.5). The transcript of the hearing before the Tribunal was not tendered to the Court. There is nothing to show that the applicant was “denied an opportunity to fairly present his case.” This ground is rejected.
Ground five alleges that the Tribunal failed to consider the “what if I am wrong?” test. The Tribunal did not need to consider that question as it did not make findings of fact adverse to the applicant. It rejected his reason for not wanting to relocate to Mumbai or New Delhi. Therefore there were no findings of fact that might have been wrong. There was no need for the “what if I am wrong?” test to be applied. This complaint is rejected.
Ground five complains also that the Tribunal concentrated on the wrong issues. Again, a transcript of the Tribunal hearing has not been tendered to the Court. The Court finds that the Tribunal considered the correct issues. Ground five is rejected.
In his affidavit filed on 4 May 2007 the applicant alleges that the Tribunal “steered the hearing to suit its own needs” and prevented him from making his claims. A transcript of the hearing has not been provided to prove this allegation of bias. An allegation of bias must be clearly made and distinctly proven: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22] citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court finds that this complaint has not been established. It is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
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: 6 June 2007
0