SZJWF v Minister for Immigration - [2007] FMCA 854

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 854

MIGRATION – RRT decision – Indian Hindu from Gujarat – claimed fear from Muslim extremists – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.422B, 424A, 424A(3)(a), 474, 476

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZIOG v Minister for Immigration & Citizenship [2007] FCA 538
SZIOG v Minister for Immigration & Anor [2006] FMCA 1450

First Applicant:

SZJWF

Second Applicant:

SZJWG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3727 of 2006

Judgment of:

Smith FM

Hearing date:

24 May 2007

Delivered at:

Sydney

Delivered on:

24 May 2007

REPRESENTATION

Counsel for the Applicants:

First Applicant in person

Counsel for the First Respondent:

Mr A Cox

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3727 of 2006

SZJWF

First Applicant

SZJWG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 14 December 2006, which has been set down for a final hearing today on whether the applicants are entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 November 2006 and handed down on 21 November 2006. The Tribunal affirmed the decision of a delegate made on 1 July 2006, refusing to grant protection visas to the applicants.
The applicants are a husband and wife. The wife does not make separate claims to be a refugee, and I shall refer to the applicant husband as “the applicant”, as did the Tribunal. He has appeared today to represent himself and his wife.
Under s.476 the Court has the “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to set aside the Tribunal decision and send it back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants’ refugee claims should be believed, nor whether they qualify for protection visas or any other permission to stay in Australia.
The applicants arrived in Australia in May 2006 on tourist visas granted in India on 27 March 2006. They lodged an application for protection visas on 2 June 2006. Their application did not disclose the name of any person who had assisted them. It attached a typed statement containing the circumstances in which they sought protection in Australia against return to India.
In the statement, the applicant said that he had joined a diamond trading business of his father in 1982, and had later continued that business in partnership with another person. He had a shop in Ahmedabad in Gujarat state, and lived there. He claimed:
I became active member of Vishwa Hindu Parishad, VHP, based in Ahmedabad. By 2002, I had become General Secretary of VHP based at [a temple]. Being an active member for the past 15 years, I was also member of Central Coordinating Committee of VHP, Ahmedabad zone. Ahmedabad has some Muslim dominated areas and Hindu Muslim riots frequently take place. There is a general divide amongst the two religious populations. Other parts of Gujrat are relatively peaceful.
The statement claimed that the applicant in February 2002 had been on a train returning from Ayodhya, which was “stopped near Godhra by some miscreants and it was set on fire” killing “more than 100 persons”. He said: “I along with some of my co passengers had miraculous escape”. He referred to a reaction by Hindus on Muslims who were blamed for the attack, and said: “Muslims reacted by killing innocent Hindus, burnt their houses, shops and factories”. He claimed that in the course of these events his own shop was looted and set on fire, and that he also received threatening telephone calls “by unknown Muslim fundamentalists. The caller said that the shop burning was a revenge of burning property and lives of Muslims”. The applicant claimed to have sought the assistance of the Diamond Dealers Association and the VHP.
He said that over subsequent years he received “threats five times”. He also said:
From Sept 2004 to March 2005 I remained away from Gujrat but could not settle anywhere as my livelihood was linked to my business and my people. We could not re establish our business. We did not get any compensation. We did not get protection from state police, although Hindu party is in power. BJP ruling party are concerned about getting sympathy votes from Hindu but not interested in protecting Hindus.
He claimed:
On 31 March 2006, in the evening I was attacked when I was returning home from my shop. A car followed my vehicle. At a corner, my vehicle was stopped. I was dragged away and beaten mercilessly. I was left with a warning: We will kill you shortly when we meet again.
He said that he felt helpless, and “with great difficulty” he obtained a visa and came to Australia.
The application was accompanied by a document purporting to be a statement by an orthopaedic consultant and trauma surgeon, which stated that the applicant had been “operated by me on 31.3.2006 for fracture Rt tibia”. The statement said that an internal titanium rod was inserted into the right tibia bone, and that the applicant was allowed to walk. No other corroborative evidence was presented to the Department nor ultimately to the Tribunal.
When refusing the visas, the delegate said that there was no country information which suggested that Hindus in India are subjected to systematic persecution by the ruling authority. He said:
While there are instances of religious and politically motivated acts of violence in parts of India, and the Indian authorities may not be in a position to guarantee the applicant absolute safety from any attack by fellow citizens, this is not the degree of protection which the state is required to provide in order to fulfill its responsibilities in terms of the Convention.
The delegate noted that the applicant had stated that he had lived in Ahmedabad for the last 42 years until his departure, and said: “in the event that the applicant does not wish to return to his home in Ahmedabad, then I consider that relocation on return to India is a viable option for the applicant”. The delegate was not satisfied that the applicant had a real chance of facing Convention‑based persecution if he returned to India.
On appeal, the applicant attended a hearing with his wife held by the Tribunal on 13 October 2006, and showed the Tribunal his passport containing his tourist visa. The Tribunal set out a description of the hearing in its statement of reasons, and I have no reason to doubt that description. The applicant has not tendered a transcript of that hearing.
In its lengthy description of the hearing, the Tribunal referred to questioning the applicant about the location of his shop, which he said was in a Muslim area of Ahmedabad. It questioned him about the number of threats he received, and about his claim to have been unable to re‑establish his business. It questioned him about the claimed attack on 31 March 2006, and the applicant said that he had been admitted to hospital in the evening of that date and had been operated upon on the next day.
The Tribunal pointed out to the applicant several concerns it had about his claims, arising from records concerning the grant of the tourist visa and from the chronology of the visa application. It also questioned him about how his original visa statement had been prepared. The applicant told the Tribunal that: “he had written a statement which a friend had translated into English. Having done so, the friend read it back to the applicant in Gujarati, so the applicant could check that it was correct”. The applicant denied that “his claims had been derived from anyone else’s”.
Following the hearing, the Tribunal gave to the applicant a letter seeking to comply with the requirements of s.424A of the Migration Act, which put to the applicant a number of matters which had also been raised in the course of the hearing. These included the fact that a previous matter dealt with by the Tribunal had been supported by a written statement containing many of the expressions used in the applicant’s own statement, which suggested that it had been adopted as a template by the applicant. It was also put to the applicant that, on his own account given to the hearing, he was not operated upon until the day after the date stated in the medical certificate, and that he had possessed a passport since 2000 and had made a tourist visa application prior to the alleged attack which he said had caused him to leave India. The applicant responded to these matters in a facsimile statement sent to the Tribunal on 1 November 2006.
The Tribunal said that, in the course of the hearing and at its conclusion, it had allowed the applicant the period of his response to the s.424A letter for submitting any additional supporting material. However, no further supporting material was ever submitted.
In its “Findings and Reasons”, the Tribunal identified the claims which were before it, and referred to country information which showed that there had been an attack on a train at Gohdra on 27 February 2007 and subsequent rioting. The Tribunal said that “it is plausible that a Hindu man who had a shop in a Muslim area of Ahmedabad, as the applicant claimed to have done, may have had that shop destroyed”. The Tribunal said on the assumption that the applicant did have a shop that was destroyed, and that “Muslims in the vicinity of that shop still wished him harm, the Tribunal is not satisfied that the applicant would face harm beyond the immediate locality of that shop”.
The Tribunal was not satisfied that in fact the applicant ever tried to move away from Ahmedabad, given evidence in his statement and when applying for a visa suggesting that he had lived continuously in Ahmedabad.
The Tribunal referred to country information indicating the situation of Hindus in Gujarat, who make up 90 per cent of the population, and said:
In these circumstances, the Tribunal, while noting his claim that the Government is unwilling to protect Hindus, does not accept that, as a Hindu, he would not have the protection of the authorities in his state should there be random instances of community violence in the future.
…
Therefore, even if the Tribunal were to accept that the applicant faced a threat of harm in Ahmedabad following the riots of early 2002, it is not satisfied he has a well‑founded fear of persecution for reasons of his religion, or indeed any other Convention reason.
The Tribunal said that the above conclusions assumed that the applicant did have a shop which had been destroyed, attacked and threatened. However, it said that it was not satisfied that “the applicant’s claims, as put to the Department and the Tribunal itself, are based upon his personal experiences”. It noted the commonality of some words and phrases appearing in the applicant’s statement and that of a previous applicant, and considered that this “seriously undermined” the credibility of its claims.
The Tribunal considered the applicant’s medical certificate, and accepted that it was genuine and the applicant had been operated upon for an injury to his right leg in March 2006, but noted that the certificate did not support the applicant’s account of events on 31 March 2006.
The Tribunal also referred to the fact that the applicant had a passport, and it said that it “would not have expected him to remain in his home area until May 2006” if “he held a genuine fear of persecution as a result of the events in March 2002”. The Tribunal concluded:
For these three reasons, the Tribunal does not accept that the applicant’s claims are a reflection of his personal circumstances, apart from the fact of him residing in Ahmedabad at a time when rioting took place. The Tribunal does not accept that, following the riots in 2002, the applicant was personally targeted by Muslims in Ahmedabad.
[It] therefore finds that the applicant is not personally adversely regarded by Muslims for reasons related to him having a business in a Muslim area in 2002, or otherwise. It has found above that, as a Hindu living in Gujarat, the applicant does not have a well‑founded fear of persecution. As the applicant has made no claims for protection other than those dealt with above, it follows that the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.
The applicants’ original application in this Court contains four grounds:
1.The Tribunal relied on independent country information and did not share this information with me.
2.The Tribunal discounted my specific claims on the grounds that it was copied from another application.
3.This denied me fairness and procedural correctness because Tribunal was infected with bias.
4.Tribunal was in jurisdictional error in reaching its decision because it did not take relocation and state protection effectiveness into consideration. Tribunal was clouded in its vision.
In relation to Ground 1, the Tribunal was not obliged to “share” independent country information with the applicants (see ss.422B and 424A(3)(a)). In any event, it appears to me that the gist of the country information which was relied upon by the Tribunal was in fact put to the applicants in the course of the hearing.
In relation to Ground 2, I consider that it was open to the Tribunal to “discount” the applicant’s claims by reason of its finding that the applicant had used a template statement and had denied that fact.
In relation to Ground 3, as I shall indicate below, I am not persuaded that the material before me establishes any “bias”.
In relation to Ground 4, in fact the Tribunal did consider issues of relocation and state protection. I am not persuaded that its reasoning in these respects reveals any jurisdictional error.
An amended application contains further grounds, which were repeated and addressed in a written submission filed in the Court. The first ground alleges error of law with two particulars:
1.The Refugee Review Tribunal erred in law and erred in making findings of well‑founded fear.
The first particular is:
(I)The Tribunal erred in adopting an unduly harsh approach to the well‑founded fear. The Tribunal is required to assess the harm from the perspective of the persecutor instead assessing the harm from the perspective of the putative persecute.
PARTICULARS:
The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive.
A criticism of a Tribunal’s reasoning as being “harsh”, even “unduly harsh”, does not address any principle of jurisdictional error. I addressed a similar argument elaborated by counsel in SZIOG v Minister for Immigration & Anor [2006] FMCA 1450, which was upheld by Bennett J in SZIOG v Minister for Immigration & Citizenship [2007] FCA 538. For the reasons I gave in that case, I am not satisfied that this ground raises any jurisdictional error.
If the contention is read as alleging that the Tribunal’s reasoning reveals irrationality within the principle suggested in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], I would not accept that contention. The Tribunal’s reasoning was far from irrational.
An argument that the Tribunal wrongly addressed “why he would be harmed” rather than the motive of the alleged persecutors is, in my opinion, misconceived. It was rational and relevant for the Tribunal to question the applicant about the event he claimed, so to see whether it occurred, and before addressing the motives of the alleged attackers. There was nothing irrational in the Tribunal investigating whether the applicant had been harmed as he claimed, and on the material before me it was open to it to make an adverse finding as to this.
The second particular is more diffuse. It generally alleges:
(II)The Tribunal identified wrong issue; asked wrong questions; failed to consider relevant material and relied on irrelevant materials.
The argument presented in the particulars in support of these contentions, in my opinion, addresses only the merits of the Tribunal’s reasoning, and does not identify any jurisdictional error. I am not persuaded that there was any part of the material before the Tribunal which it failed to consider.
A contention that the Tribunal erred when considering whether the applicant could safely relocate away from his home in Ahmedabad, in my opinion, addresses only the merits of a finding by the Tribunal which was made in accordance with principles binding upon it, and upon me, as explained in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. Moreover, due to the Tribunal’s rejection of the truth of the claimed acts of persecution and the claimed withholding of state protection, the Tribunal’s opinions about relocation were not essential parts of its reasoning.
The second ground in the amended application is:
2.The Tribunal erred took the irrelevant considerations into account in exercising of power. The Tribunal erred in failing to exercise constructive jurisdiction to make any significant finding in relation to the applicants.
It is difficult to make any sense of these contentions. The arguments in the particulars allege that it was irrelevant for the Tribunal to have addressed the similarities between the applicant’s visa statement and the statement made in the earlier case. However as I have indicated above, in my opinion, it was not irrelevant for the Tribunal to consider this, since it did go to the credibility of the applicant’s statement and his explanation as to how it had been written.
The other particulars under this ground allege bias by the Tribunal, and this is elaborated in the written submission. In effect, it is alleged that the Tribunal brought a closed mind to its consideration of the applicant’s evidence at the hearing and subsequently, and that this is revealed by the Tribunal’s “line of questioning” at the hearing, its refusal to allow 25 days to the applicant to get more documents from India, its “very harsh approach during the hearing”, and its reasoning in its decision which showed the “member misunderstood the whole case”.
I am not persuaded that the applicant has made out either actual or apprehended bias under principles established in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. In the absence of a transcript, I would not draw any of the contended conclusion from what happened at the hearing. It was the task of the Tribunal to ask questions testing the applicant’s refugee claims. The refusal to allow more time for the applicant to get documents was reasonable in the circumstances. In my opinion, based upon my reading of the Tribunal’s description of the hearing, an informed lay observer would not form the requisite apprehension of a closed mind at that time. The conclusions ultimately arrived at by the Tribunal show, in my opinion, only that it was performing its statutory task, and do not establish that it had a closed mind before it made its decision.

The written submission contains a claim that the applicant was “totally confused because the Gujarati Interpreter was not accurately interpreting about what he said”. However, this allegation is entirely unsupported by evidence, and I do not accept it.
Other parts of the written submission address the merits of the applicant’s refugee claims, and do not raise matters going to jurisdiction.
The applicant today had no submissions to make to me, but relied upon the documents which had been filed.
For the above reasons, I am not persuaded by any of the arguments presented to the Court. In my opinion, the Tribunal’s decision is a privative clause decision, and I must dismiss the application.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 June 2007