SZJYX & Anor v Minister for Immigration
[2007] FMCA 1815
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1815 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZJYX” (applicant wife) & “SZJYY” (applicant husband). |
| Migration Act 1958 (Cth), s.91X |
| Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [10]-[22] Ram v Minister for Immigration (1995) 57 FCR 565 Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1004) 124 ALR 265 SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 |
| First Applicant: | SZJYX |
| Second Applicant: | SZJYY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 18 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicants appeared in person with the assistance of a Hindi interpreter |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 3 January 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG18 of 2007
| SZJYX |
First Applicant
And
| SZJYY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The primary applicant (applicant wife) was born in Nanded, Maharashtra, India and is a Muslim and an Islamic religious teacher. She married the applicant husband on 4 July 2004. She was educated for 15 years and was granted a Bachelor of Commerce degree in June 2004. She co-owned the Islamic Iqra School in Khoja Colomny, Nanded from December 2004 to July 2006. She has a father, mother and brother living in India.
The applicant husband was also born in Nanded, Maharashtra, India and is also a Muslim and an Islamic religious teacher. He was educated for 10 years and co-owned the Islamic Iqra School with his wife. He has a father, mother and sister living in India.
The applicants claim that they were members of the congress party and supported local members at election time. They were respected by the locals because they were educated and ran the Muslim religious school which is well known and popular and had been in existence for a long time.
The applicants claim that Hindi groups such as the Shiv Sena threatened Muslims in Nanded even though the congress party was in power. They claim that the Shiv Sena members demanded that they stopped working in the school. Members of the Shiv Sena also said they would kill the applicants and hurt the school children. Despite requesting assistance from the police, none was given. In March or April 2006, the applicants organised a school rally which was attacked by the Shiv Sena resulting in the applicant husband and some of the school children being hurt. The school was temporarily closed until the end of May 2006. The night that the school was re-opened, the Shiv Sena attacked the applicants’ house and they were forced to escape to a relative’s house. Further calls to the police for help brought no response and the harassment by the Shiv Sena continued. The applicants claim that the harassment and attacks forced them to flee India and seek protection in Australia.
The applicants arrived in Australia on 11 July 2006 and made an application for a Protection (Class XA) visa on 9 August 2006. A delegate of the first respondent refused to grant a visa on 18 August 2006 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicants applied to this Court for judicial review of the Tribunal’s decision which is the decision of Michael Northcott, reference number 060777537.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
The amended application filed 21 May 2007 contains three grounds of review:
Consideration
Ground one
1. The Tribunal failed to consider the Applicant’s refugee claims in a Constructive and Articulate manner because of the following contradictory findings it made during the assessment of the claims supported by the written and oral evidence, namely:-
“The findings above satisfy the Tribunal that the Applicants were not attacked by Shivsena in the circumstances they claim. The Tribunal’s finding above also establish that the visa applicant’s have not been harmed because of their Muslim religion or their support for the Congress Part” (Green Book page 104, last para)
The Applicants submit that the Tribunal previously made the following findings which contradicts with the above conclusions, namely:-
“The Tribunal accepts that the Applicants were the victims of misfortune on 21 March 2006 when they were taking part in a procession which involved school children from the Islamic school that the Applicant husband owns with his parents. The Tribunal accepts that the Applicant husband was hurt on 21 June 2006. The Tribunal accepts that the applicants are Muslims and that they teach at the school. The Tribunal also accepts that the Applicants are also supporters of the Congress Party” (Green Book page 103 para 06).
Wherefore the Applicants submits that the Tribunal was making contradictions of its findings with regard to the refugee claims made by the applicants and was not inconsistent and constructive in its findings. Hence these errors are a clear breach of the provisions in the Migration Act, namely sec.414 and 414 of the Act.
Both parties had filed written submissions addressing the issues raised in the amended application. The applicants indicated that they would rely on the amended application their written submissions and declined to make oral submissions. Mr Mitchell also indicated that he would rely on his written submissions and made oral submissions, which I will refer to below.
The applicants’ written submissions state that the Tribunal failed to carry out its review obligations in a constructive and articulate manner and relied on the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55]:
55. …Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].
The Court then said at [63]:
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
The applicants referred to the manner in which the Tribunal dismissed their claims, alleging that “the applicants were not attacked by Shiv Sena” while noting that “country information establishes that since December 2005 the Shiv Sena has been in conflict with itself.” The applicants submit that the attack on 21 March 2006 on the procession involving the applicant husband could have been planned by a break-away group of the Shiv Sena. They contend that the Tribunal did not give them a reasonable answer as to why the procession was attacked and the applicant husband injured.
The applicants submit that the Tribunal, having accepted that the applicant husband was attacked, hurt and hospitalised and that they were victims of misfortune (CB 103), failed to explain who was responsible. They submit that this clearly indicates that the Tribunal failed to conduct the hearing and make its findings in a constructive and articulate manner. The applicants submit that there was a clear jurisdictional error committed by the Tribunal in its failure to adhere to the statutory obligations provided in the Migration Act.
The applicants submit that the Tribunal failed on the following fronts in dismissing their claim:
a)the Tribunal misunderstood and failed to address the applicant’s case;
b)there was a constructive failure by the Tribunal to exercise jurisdiction; and
c)the Tribunal failed to accord the applicants procedural fairness.
In support, the applicants relied on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26. They submit that the finding that “the Tribunal is therefore not satisfied that the applicant husband will encounter any difficulty in the reasonably foreseeable future” was wrong because the Tribunal failed to evaluate constructively and articulately the implications involved in the running of the Islamic school. They submit that any relocation would seriously affect their security and future due to threats and communal tension.
Mr Mitchell contends that the Tribunal’s findings as particularised in the amended application were not contradictory in that the Tribunal accepted that the applicants were victims of misfortune on 21 March 2006, but did not accept that there was a Convention nexus in respect of that past harm. The Tribunal accepted that the attack on the parade did occur, but did not accept that the perpetrators of the harm had the identity or motivations as claimed by the applicants. The Tribunal did not accept that the attack involved Shiv Sena members, or that the harm suffered was for reason of the political opinion or religion of the applicants. Neither did it accept that the police failed to assist for any of those reasons (CB 103).
Mr Mitchell submits that the Tribunal’s findings were based on independent country information that did not support the claim but indicated that Shiv Sena was focused on internal disharmony and was not intent on attacking Muslims or supporters of the Congress Party. That material formed the basis of the Tribunal findings. Mr Mitchell contends that this Court should not review the correctness or fairness of inferences drawn in this respect: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36]. Further, there was no harm in the Tribunal focussing on the motivation and indemnity of the perpetrator of the past harm: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at [240]-[241]; Ram v Minister for Immigration (1995) 57 FCR 565 at [567]-[568], [569].
In light of the submissions made with respect to ground one, I have re-read the Tribunal decision and formed the view that the Tribunal correctly dealt with the issues involved in this claim. I agree with Mr Mitchell’s contention that it is not appropriate for this Court to review the correctness or fairness of the selection of country information by the Tribunal, or to reassess inferences drawn from that material. That is a determination of fact reserved for the decision-maker and cannot be upset by judicial review. I am satisfied that ground one cannot be sustained.
Ground two
That the Tribunal failed to assess the Applicant’s ‘fears of harm’ suffered according to the Refugee Criteria and misapplied the Applicant’s claims due to following finding: and thereby failing to evaluate the fears as per sec.91R of the Migration Act 1958:-
“The findings made above satisfy the Tribunal that the Applicant’s were not attacked by Shiv Sena. The Tribunal’s findings above also establish that the visa applicants have not been harmed because of their Muslim religion or their support for the Congress Party.”
The applicants submit that the as stated above the Tribunal was misconstruing the Misunderstanding the Applicant’s claims and therefore, it is says to the effect – “The findings made above satisfy the Tribunal that the Applicants were not attacked” means obviously an error made by the Tribunal. Therefore, by virtue of the above conclusions the Tribunal failed to carry out its jurisdictional commitment under sec.91 of the Migration Act as to the “fears” suffered by the Applicants and therefore the Tribunal made yet another ‘jurisdictional error’ with regard to the Applicant’s claim.
The applicants submit that the Tribunal failed to carry out its function under s.91R of the Migration Act because it misinterpreted and bypassed the applicants’ claims. The applicants submit that this was contrary to the exercise required of the Tribunal: SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 at [31] per Wilcox J. Mr Mitchell submits that the Tribunal clearly applied s.91R in accordance with its own summary of that provision (CB 93-94). It is submitted that the Tribunal did not accept that the past harm suffered by the applicants was for reason of their political opinion or religion and considered that it was reasonable for the applicants to relocate to avoid harm. These findings reflected the Tribunal’s task, which was to assess whether the subjective fears of the applicants were well-founded and Convention based. The Tribunal properly engaged in an assessment of the probability of future persecution and made findings on that question. Mr Mitchell submits that the Tribunal was not required to do anything further: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [575]-[577].
The Tribunal decision set out the provisions of the Migration Act and the test to be applied in its assessment of the issues. This is in a standard format commonly adopted by the Tribunal. The Tribunal, after setting out the applicants’ claims, considered reports covering a number of issues raised. It addressed issues such as freedom of religion, Shiv Sena Lyla Bavadam, an article about Muslims giving blood to Hindu victims of the Mumbai train bombings and relocation. It is against this background that the Tribunal assessed the applicants’ claims and set out its reasons in its “Findings and Reasons”. I am satisfied that the Tribunal decision indicates that the Tribunal properly engaged in that assessment and this ground of review cannot be sustained.
Ground three
The Applicant further submits that the Tribunal made a further jurisdictional error by virtue of the following findings it made relevant to the “relocation”, namely:-
“The Tribunal is further satisfied on the evidence before it that it is reasonable to expect the Applicants to live elsewhere other than Nanded, in India, and avoid harm they fear”
“The Tribunal reaches this conclusion for the following reasons”
“The focus of the Convention definition is not upon the protection of that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country…………, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration (1994) 52 FCR 437 per Black CJ at 440).
The Applicant submit that the Tribunal misunderstood the Principles enunciated by the Honourable Chief Justice Black in a comprehensive and broader range and the Tribunal applied those Principles in a “narrower sense”. The Tribunal did not follow the basic recommendation of the learned Chief Justice namely “whether the relocation is reasonable in the circumstances”.
The Applicant submit that the Tribunal was unable to make this assessment because the Tribunal completely misdirected itself for not constructively assessing the Applicants claims submitted as they were. The Tribunal could not satisfy one of the main criteria of the exercise, i.e. “Whether the applicants were able to genuinely access domestic protection” and “whether for them the reality of protection was meaningful”. Therefore the applicants submit that the Tribunal’s relocation finding was also flawed.
The applicants also claim that the Tribunal failed to correctly determine whether the relocation finding was reasonable or not on the basis of the principles enunciated in Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 124 ALR 265, which held that before making a relocation finding, the Tribunal should have considered the only reasonable option that remain for the applicants.
The applicants referred to the Tribunal’s conclusion that:
There is no reason he could not start a new life in another part of India and develop new social circles amongst the 1 billion people in India. The Tribunal is satisfied that the practical realties are such that he is able to relocate without difficulty.
(CB 106)
The applicants submit that they could not generally access domestic protection because of the nature of their vocation, which was running the Islamic religious school. The applicants argue that their vocation and their particular circumstances rendered relocation not reasonable.
Mr Mitchell submits that the Tribunal considered the applicants’ claim to have been denied state protection in the past and rejected that claim. The Tribunal considered whether the applicants could safely relocate to another part of India based on the “practical realities” they faced: NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [10]-[22]; Randhawa. Mr Mitchell submits that the Tribunal clearly considered the practical realities facing the applicants especially their level of education (CB 94, 106-107). It considered that the applicant wife was co-owner of the Muslim school with over 15 years of education (CB 94.7) and there was “no reason why she could not start a new life in another part of India” (CB 106.3). It also considered that the applicant husband was co-owner of the Muslim school with over 10 years of education (CB 94.7). The Tribunal was satisfied “that relocation is both a reasonable and practical option for the applicant husband” (CB 107.1). Mr Mitchell submits that there is no error in the Tribunal’s consideration of the relocation issue.
When the applicants were invited to respond to Mr Mitchell’s written or oral submissions, the applicant wife indicated that it was not possible for them to relocate within India due to their occupation as Islamic school teachers.
The Tribunal considered recent country information which focused on whether it was possible for the applicants to relocate, which was initially confirmed by the applicant husband’s evidence. However, the Tribunal thought that the applicant husband subsequently changed his evidence to bolster his claim. In the circumstances, I am satisfied that the Tribunal applied the relocation test correctly and based on country information which supported its view. I am satisfied that this ground cannot be sustained.
Conclusion
The applicants in these proceedings are self-represented litigants who appear to have been assisted in the preparation of their application by a person with some knowledge of the Migration Act. The applicants were only able to make very limited oral submissions stating that it was not possible for them to relocate within India. Mr Mitchell assisted the Court within the preparation of written and oral submissions which address the issues raised by the applicants in their application. I am satisfied that none of the grounds in the application can be sustained. Nor is it apparent from a review of the Court Book and the Tribunal decision that any jurisdictional error occurred. In the circumstances, the application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 November 2007
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