SZJXU v Minister for Immigration
[2008] FMCA 536
•30 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 536 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no point of principle. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 231 ALR 592 SZBXR v Minister for Immigration and Citizenship [2007] FCA 1909 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| Applicants: | SZJXU, SZJXV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3898 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 February 2008 |
| Last date for submissions: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2008 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3898 of 2006
| SZJXU, SZJXV |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal handed down on 5 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are citizens of India, arrived in Australia in April 2006 and in June 2006 applied for protection visas. The application was refused and the applicants sought review by the Tribunal by application lodged on 27 July 2006.
In the protection visa application the applicant husband claimed to fear persecution from Muslim fundamentalists on the basis of his Hindu religion and his membership of the Vishwa Hindu Parishad (VHP). He claimed that he had started participating in religious activities in 1992. He claimed he became an active member of the VHP based in Ahmedabad and by 2002 had become President of the VHP at a particular temple in Ahmedabad. He claimed that he was also a member of the central committee of the VHP of the Ahmedabad zone. He claimed that his home town had some Muslim dominated areas and that Hindu/Muslim riots frequently occurred, there being a “general divide” amongst the two religious populations compared to other parts of the state of Gujarat.
The applicant claimed that in February 2002 he was on a train with many other members of VHP and the Rashtrya Swayamsewak Sangh (RSS) which was stopped by “miscreants” and set on fire. He claimed that more than a hundred people were burnt alive but that he and some other passengers escaped. Hindus had blamed Muslim fundamentalists and terrorists for the attack and had retaliated by killing innocent Muslims. This led to Hindu/Muslim riots. He claimed that during such riots his jewellery shop was looted and set on fire and that he received telephone death threats from unknown Muslim fundamentalists.
The applicant claimed that the VHP started to take up “the cases” with the state government, but that there was virtually no progress. The local diamond dealers association also took up his case for compensation. Thereafter the VHP started actively organising functions against fundamentalist Muslims. In a “tussle” two activists were killed by Muslims and many, including the applicant, threatened. He claimed he received threats on five occasions.
The applicant claimed that from February 2004 to August 2005 he remained in his home village, but that he could not settle anywhere as his livelihood was linked to his business and his people. He claimed that he did not get compensation or protection from the state police although the Hindu party was in power, as the BJP was not interested in protecting Hindus. He also claimed that when “they” raised the issue with the state government or the press they used to get direct threats to their lives.
The applicant claimed that in March 2006 his vehicle was stopped and he was attacked and warned that he would be killed. He claimed that he raised the issue of safety at religious and political forums to no avail and that he had experienced a “near deathlike” situation in four years. He claimed that he and his wife then obtained visas “with great difficulty” and came to Australia and that if they returned to India they could be killed by Muslims or “maybe even by power hungry Hindu fundamentalists” and that the Indian police could not protect them.
The applicant advised that he could provide documentary evidence of ownership of his business, a police report about his burnt shop, an insurance claim and related documents and that he could also produce documents relating to his membership of the VHP and a trade association if required. However there is no evidence before the Court that he did so.
The second applicant (the applicant wife) completed an application as a member of the family unit of the first applicant who did not have her own claim to be a refugee.
A delegate of the first respondent refused the application which was assessed as a claim by the first applicant to fear persecution because of his religion.
The applicant sought review by the Refugee Review Tribunal on 27 July 2006. He was invited to a hearing. On the day of the hearing (12 October 2006) the Tribunal received a letter from the applicant taking issue with the delegate’s decision and the fact that it had been made without inviting him to provide more documents. He claimed that he had not brought many important documents from India. He reiterated that he could not rely on the state for protection against extremist Muslims and that he had a real chance of fear from extremist Muslims as well as from extremist Hindu organisation workers. He stated that he would like to submit further documents in support of his claim. At the hearing he provided copies of passports and internet articles reporting on rioting in Gujarat in 2006. He did not provide any further documents.
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) putting to him possible findings by the Tribunal that the applicant’s claims that threats and attacks against him had persisted after 2002 were not “credible” in light of country information, the fact that the applicant had remained in the same location for four years since the riots and had holidayed abroad and returned to the same location. The s.424A letter also put to the applicant that even if he had a well-founded fear of persecution in his home town it would be reasonable in his particular circumstances “given his entrepreneurial, educational, occupational and language skills” to relocate to another Indian city such as New Delhi where he might live safely in light of independent country information to which the s.424A letter referred. The s.424A letter concluded by saying that the information was relevant because “if the above findings are accepted, then the Tribunal might find that your claims are not credible and might therefore find that you do not have a well-founded fear of persecution”.
The applicant responded by letter of 7 November 2006 in which he reiterated his claim that at the time of the riots the local police and government machinery were “totally ineffective”, that the police took no action and were corrupt and that the government had failed to secure the life and livelihood of Hindus and Muslims. The letter also addressed the fact that the applicant and his wife had remained in the same area for four years (“in search of peace and livelihood”) stating that they did not like to depart from their home and that they went overseas not for a holiday but searching for stability and to find a place where they could live for some time in peace and tranquillity.
On the question of relocation the applicant agreed that India was dominated by the Hindu faith, but claimed that it did not provide “shelter” for victims of the Gujarat riots. He claimed that they had tried to relocate “in many parts of India but we could not get success”. The applicant also contended that the present situation was worse than in 2002 and that there was no reliable protection by the state or the central Indian authorities.
In its reasons for decision the Tribunal summarised these matters and what occurred at the Tribunal hearing. It set out independent country information in relation to religious freedom in India. Its findings and reasons were brief. They are as follows:
The applicants, who are Hindu, claim that they fear returning to India because they fear harm from Muslims or “power hungry Hindu fundamentalist”. They claim that the shop belonging to the applicant husband was destroyed during riots in 2002 and that since then they have received threats from Muslims. The husband applicant claims that since then they have been threatened by Muslims and that they cannot gain protection from the authorities. They claim that this situation would prevail wherever they might live in India.
The Tribunal accepts that there (sic) communal rioting occurs sporadically in India and that the applicant’s shop may well have been destroyed in 2002 as he claims. However, the Tribunal finds the applicant’s claims that threats and attacks against them have persisted not to be credible in the light of the fact that they have remained in the same location near Ahmedebad for the four years since the riots and that they have journeyed abroad and returned to the same location. Even if the applicants’ had a well-founded fear of persecution in Ahmedebad, a situation which, as indicated above, the Tribunal does not accept, it would be reasonable in their particular circumstances to relocate to another city such as New Delhi where they might live safely. The Tribunal finds the independent evidence cited above (“The vast majority of Indians of every religious faith lived in peaceful coexistence”) supports a finding that the applicant’s claim that inter-religious violence exists throughout India not to be credible and that there is no basis that the applicants have a well-founded fear of persecution from Muslims or “power hungry Hindu fundamentalists”. The Tribunal makes this finding having considered the applicants’ last submission which the Tribunal finds as unconvincing in terms of the applicants not being able to live safely anywhere in Hindu-dominated India, and, in particular, New Delhi, the national capital and a well-ordered city ( where the Tribunal has before it no evidence that speaks of inter-religious violence.
In the light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds their fear is not well founded.
The applicant sought review by application filed in this Court on
28 December 2006. In that application it was contended generally without particulars that the Tribunal relied on independent information without considering the applicant’s personal persecution, that the Tribunal failed to consider that the applicant’s claims were Convention related and that “the Tribunal did not consider relocation issues and how this would affect the applicant. The RRT did not consider the applicant’s fears. The RRT was guilty of generalising the Indian situation without looking specifically at the applicant’s claims and testimony. This was jurisdictionally wrong”. The applicants did not file written submissions. The first respondent filed written submissions addressing the grounds in the application of 28 December 2006.
During the hearing on 6 February 2008 the applicant told the Court that he wanted to submit a document which, it emerged, was an amended application. In light of the time at which it was sought to rely on the amended application, while the Court gave the applicant leave to file the amended application it also gave the first respondent time after the hearing to file and serve further written submissions in relation to the grounds raised in the amended application and time for the applicant to file and serve any written submissions in reply.
The applicant made no oral submissions in support of his amended application. The first respondent filed post-hearing written submissions. No post-hearing written submissions were received from the applicant. I have, however, considered the grounds in both the application and the amended application.
Independent information and the applicant’s personal situation
The applicant’s contention in the application that the Tribunal relied on independent country information without specifically considering his personal persecution does not establish jurisdictional error. It has not been established that the Tribunal failed to consider the applicant’s claims. It was open to the Tribunal to reach the findings that it did insofar as such findings were based on independent country information. The Tribunal accepted, consistent with the claims of the applicant, that communal rioting occurs sporadically in India and that the applicant’s shop may well have been destroyed in 2002 but had regard to independent country information, in particular in relation to the issue of relocation. It was open to the Tribunal to prefer independent country information in relation to the existence of inter-religious violence throughout India, contrary to the claims of the applicant in relation to his claims to fear persecution from Muslims or “power hungry Hindu fundamentalists”. It was also open to the Tribunal to have regard generally to independent country information in relation to inter-religious violence in other areas in India in considering relocation. The weight to be given to particular items of independent country information is a matter for the Tribunal. This ground does not establish jurisdictional error.
Convention nexus
Insofar as the applicant’s claim that the Tribunal failed to consider that his claims were Convention related seeks merits review, merits review is not available in this Court. If this ground is intended to assert that the Tribunal failed to address the issue of whether the applicant’s claims had a Convention nexus, it is apparent from the whole of the Tribunal decision, including its findings and reasons, that the Tribunal understood and was addressing a claim to fear persecution based on the applicant’s religion. The Tribunal referred to the fact that the applicants “who are Hindu” claim to fear harm from Muslims or “power hungry Hindu fundamentalists”. There was no need for the Tribunal to state that the claim had a Convention nexus. The Tribunal found that the applicant’s claims that threats and attacks against him had persisted after 2002 not to be credible. It also found that even if the applicants had a well-founded fear of persecution in their home town it would be reasonable in their particular circumstances to relocate within India. In such circumstances there is no jurisdictional error in the lack of an express reference to whether the applicant’s claims were Convention related.
Relocation issues
It was also claimed in the application that the Tribunal did not consider relocation issues and how “this” would affect the applicant. However, while the findings and reasons part of the Tribunal decision is brief, when the decision is read as a whole no jurisdictional error is established. The Tribunal set out the applicant’s claims made in writing and at the Tribunal hearing, including the discussion at the hearing in relation to the possibility of relocation. At that time the applicant raised a concern that inter-religious violence had spread throughout India. The Tribunal referred to the s.424A letter which put to the applicant that it would be reasonable in his particular circumstances (referring to his entrepreneurial, educational, occupational and language skills) for him to relocate in light of country information. It recorded his response that India did not provide shelter for victims of the riots and that they had tried their best to relocate but had not succeeded (although there was no explanation as to what he meant by this response).
In that context the Tribunal’s reference in the findings and reasons to the particular circumstances of the applicant is clearly a reference to the entrepreneurial, educational, occupational and language skills the Tribunal had raised with him. The Tribunal also addressed the obstacles to relocation raised by the applicant, in particular his submission that inter-religious violence had spread throughout India. The Tribunal found no basis for the claim that the applicants had a well-founded fear of persecution from Muslims or power hungry Hindu fundamentalists, wherever they were located in India.
Hence it cannot be said that the Tribunal considered the issue of relocation without having regard to how it would affect the applicants. Rather it assessed whether it was reasonable and practical in the circumstances for the applicants to relocate in accordance with the particular principles considered in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22] and SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24].
Procedural requirements and natural justice
In his supporting affidavit the applicant husband contended that the Tribunal conducted its hearing in a manner that was wrong in procedure, that it presented him with so-called independent evidence and generalised everything about India “in a very bright and positive light” and failed to consider his claims and that in doing so it denied him natural justice. He claimed that the Tribunal ought to have listened to his claims in a positive rather than a negative manner. There is no transcript of the Tribunal hearing before the Court to support this contention. The Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. There is nothing to suggest any failure to comply with the procedural requirements in relation to such an invitation. The applicant husband attended the hearing and spoke with the authority of his wife. There is nothing in the material before the Court to establish any failure by the Tribunal to comply with s.425 in the course of the hearing. The applicants were, according to the Tribunal account of what occurred in the Tribunal hearing, made aware of the determinative issue of relocation. No jurisdictional error is established on any of the bases contended for in the application or accompanying affidavit.
The meaning of the term political opinion
The first ground in the amended application is that the Tribunal misunderstood or misconstrued the term “political opinion” as it appears in the Refugees Convention. The particulars of this ground are that the Tribunal failed to appreciate that opposition to official corruption can constitute a political opinion. This may also be intended to be a contention that the Tribunal failed to address such a claim.
The absence of any submissions from the applicant in relation to this ground makes it difficult to determine precisely what is meant by this ground. Nonetheless I have considered whether the Tribunal misunderstood the term or failed to address a claim of political opinion. It is first necessary to consider whether there was a claim of opposition to official corruption. As acknowledged by counsel for the first respondent, if there was material before the Tribunal which, if accepted, would raise a case different from that articulated by the Tribunal, the Tribunal would be under an obligation to address that case (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [13]).
However it is clear that any such claim must represent “a substantial clearly articulated argument relying upon established facts” as discussed in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 24 per Gummow and Callinan JJ and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 61 – 61 and 68. As Lindgren J stated in SZBXR v Minister for Immigration and Citizenship [2007] FCA 1909 at [27]:
The clarity with which a claim must appear before the RRT will be required to deal with it cannot be identified or described in such a way that the application of the test in all cases will be free of difficulty. There can be no doubt that an asylum seeker is not required, at peril of failure, properly to classify or characterise his or her allegations as demonstrating one or other of the ‘fears’ identified in the Convention relating to the status of refugees. On the other hand, a claim (and in this sense a case) that is not clearly enough asserted on the materials before the RRT is not one that must be addressed.
In the present case the applicants’ initial claims were set out in a written statement accompanying the protection visa application. While the applicant claimed to be an active member and president of part of the VHP and a member of the central committee of the VHP Ahmedabad zone, he made those claims in the context of a claim of participation in religious activities. He referred to being President of the VHP based at a particular temple. He went on to refer to the existence of Muslim-dominated areas and the fact that Hindu/Muslim riots frequently took place in Ahmedabad.
It is the case that after referring to the 2002 riots and the fact that his shop was burnt, the applicant referred to the VHP taking up cases with the state government and the diamond dealers association doing the same. He claimed that the VHP actively organised functions against fundamentalist Muslims and that “this started marking (sic) of activists of both the organisations”. However, as he clarified, his “organisation only wanted that Muslims should live like good Indians but they behaved more like Muslims than Indians”.
He referred to political issues insofar that he claimed that he could not get protection from state police although a Hindu party was in power as it was concerned with getting sympathy votes from Hindus but not interested in protecting them. He claimed that he raised the issue of safety at religious and political forums and that in a “highly politicised atmosphere” could not get an assurance of protection and could not do anything to get a source of livelihood. He claimed he had fallen into a “political trap” laid down by power-hungry politicians and “hatred propagating religious fundamentalists”.
Hence there are a number of references in the claims which might be taken to be references to issues that have political aspects but no reference to circumstances such as to raise a claim of opposition to official corruption as a reason for his fear of persecution. It is not apparent that the applicant was claiming that it was his actual or perceived political opinion which attracted the threat of harm from the Muslim fundamentalists or the government. Rather he claimed that through organisations and various forums the issue of Hindus facing harm from Muslims was raised with the government. His claim that it was not in the government’s interests to help or protect them because every time a Hindu was injured by a Muslim this increased the sympathy the Hindus had for the ruling party (which in turn kept them in power) does not raise a substantial, clearly articulated claim based on an actual or perceived political opinion of opposition to official corruption. His contention was that he could not avail himself of state protection because of the political interest of the government in obtaining Hindu support, not that he was persecuted or had a fear of persecution for an actual or perceived political opinion, based on opposition to official corruption.
The delegate considered the applicant’s claim to be a claim based on religion. In connection with the application for review the applicant provided the Tribunal with a written statement (referred to above) which is consistent with his concern being based on religion and a contention that he could not obtain state protection even when a Hindu political party was in power. He referred generally to the claims he made in connection with his protection visa application and claimed that he needed “a reasonable effort by the state and central government to protect from the extremist Muslims” and that he had a “real chance of fear from the extremist Muslims as well as the extremist Hindu organisation workers”.
There is nothing in the material before the Court to raise a clearly articulated claim that the applicant was being targeted for his opposition to official corruption. The Tribunal recorded that when the applicant was asked at the hearing why he feared returning to India he said that “it is on religious grounds in that he fears being attacked by Muslims”. This clarified the basis for his fear. Subsequently, when asked why he could not return to his home village, he reiterated that he was afraid of the Muslims and that Muslim people kept “threatening and misbehaving” and that he had complained but “the police would only act if one bribed them and the Muslims had bribed them more”. In responding to Tribunal questioning about the reasonableness of relocation (in which context the Tribunal raised information about inter-religious harmony and Hindu/Muslim conflict) the applicant had “stressed that he felt fear from Muslims”. There is no record of the applicant raising his membership of VHP during the hearing or any other claim in such a way as to constitute a claim based on opposition to official corruption.
When the applicant’s claims are read in context the political references are not such as to raise a substantial, clearly articulated argument relying upon established facts of a fear based on actual or perceived political opinion arising out of opposition to official corruption as is contended in the amended application.
In those circumstances there was no obligation on the Tribunal to consider a claim of a well-founded fear by reason of opposition to official corruption or to determine the meaning or scope of the concept of political opinion in the Refugees Convention in the manner contended. Insofar as the applicant now claims to fear persecution based on an opposition to official corruption, it has not been established that he made such a claim on the material before the Court. No jurisdictional error is established on this basis.
No evidence
The second ground in the amended application is as follows:
The Tribunal made findings in the complete absence of evidence.
Particulars
(a) The Tribunal erroneously found that the first applicant had not claimed in his application to the Department of Immigration, that his refusal to pay bribes to the police was due to, “moral or ideological or political objection”.
(b) It was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection.
(c) In finding that there was no evidence before it that the applicants were unable to access effective state protection, the Tribunal ignored the evidence of the first applicant that they had in fact been denied protection because they did not pay bribes.
The particulars to this ground seem to be misconceived or to relate to some other application. The Tribunal did not find that the applicant had not claimed in his application to the Department of Immigration that his refusal to pay bribes to the police was due to “moral or ideological or political objection”. Nor did the Tribunal make a finding that there was “no evidence before it that the applicants were unable to access effective state protection”.
The Tribunal rejected the applicant’s claims that threats and attacks had persisted against him after 2002. The Tribunal considered that the applicant’s claims were not credible, given that he had lived in the same location for four years since the riots and travelled and returned to the same location. The Tribunal also found that even if the applicant had a well-founded fear of persecution in Ahmedabad, independent evidence did not support his claim that inter-religious violence existed throughout India and that it would be reasonable for him to relocate.
It was unnecessary for the Tribunal to determine the issue of whether there had been effective state protection in that context (and whether the applicant had been denied protection because of a failure to pay bribes) given that it did not accept that the applicant had suffered the post-2002 persecution that he claimed.
No jurisdictional error is established on the basis contended for in ground 2 of the amended application.
Section 425
The third ground in the amended application is as follows:
The Tribunal failed to issue a meaningful invitation to the second applicant to attend a hearing pursuant to s.425 Migration Act.
Particulars
(a) The Tribunal failed to invite the second applicant for a hearing according to law.
As discussed above there is nothing in the material before the Court to establish a failure to invite the applicant to a hearing as required under s.425 of the Migration Act. The hearing invitation letter of 22 August 2006 was addressed to the applicant at the only address provided in the application for review. It contains the necessary information in accordance with the requirements of the Migration Act. The applicant husband responded and attended the Tribunal hearing. No failure to issue an invitation in accordance with the provisions of the Act let alone a failure to issue a meaningful invitation has been established.
There is no transcript of the Tribunal hearing before the Court and hence no evidentiary basis for any contention that the Tribunal failed to raise determinative issues with him (see SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 231 ALR 592) or otherwise failed to comply with s.425.
Section 424A
The last ground is a general contention that the Tribunal breached s.424A of the Migration Act. It is not made out. There is no particularisation of information that should have been put to the applicant pursuant to a s.424A letter. I note in that respect that the Tribunal put to the applicant independent information which would be within the exception to the s.424A(1) obligation within s.424A(3)(a) and also aspects of its provisional reasoning (cf SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. No failure to comply with s.424A is established.
As no jurisdictional error has been established the application should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 April 2008