SZJZW v Minister for Immigration
[2007] FMCA 656
•3 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 656 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – republication of information to the Tribunal – merits review not available. |
| Migration Act 1958, ss.91X, 424A |
| Goo v Minister for Immigration & Citizenship [2007] FCA 391 SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 SZESF v Minister for Immigration & Multicultural Affairs [2007] FCA 6 SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicants: | SZJZW & SZJZX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 57 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 May 2007 |
| Date of Last Submission: | 3 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. B. O’Donnell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 57 of 2007
| SZJZW & SZJZX |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 8 January 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
29 November 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 7 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
Only the first applicant has made specific claims for a protection visa and no specific claims were made by or on behalf of his wife, the second applicant. For convenience, therefore, the first applicant will be referred to in these reasons as the applicant. The Tribunal described the applicant as follows:
… he attended school up to year 12. After school he started “selling medicine under an agent”. He opened his own business in 1999 with a partner. He said the medicine business was only temporary. He started a jewellery business in 2002. The business closed after he left to come to Australia. (Court Book (“CB”) page 80).
The applicant claims to fear persecution in India because of his religious beliefs or membership of the Hindu community and, arguably, his political opinion, the latter two grounds arising out of his membership of a community organisation called Vishwa Hindu Parishad (“VHP”).
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 5-8 of the Tribunal’s decision (CB 79-82). Relevantly, they are in summary:
a)the applicant was an active participant in religious activities in his community in the city of Ahmedabad in the Indian state of Gujarat. He was an active member of VHP and became its Vice President in 2002. He was subsequently made a member of the Central Committee in the Ahmedabad Zone;
b)the applicant claims that Ahmedabad has “some Muslim dominated areas and Hindu Muslim riots frequently take place”. He claims that in February 2002, there was communal violence between Hindus and Muslims following an attack on a train near Godhra where more than a hundred people died. On 27 February 2002, the applicant’s shop was burnt and he and his partner were subjected to threatening phone calls by “unknown Muslim fundamentalists”. He claimed that one of the callers “said that the shop burning was a revenge for the burning property and lives of Muslims”. He claimed that the VHP attempted unsuccessfully to obtain compensation for the burnt property from the government;
c)the applicant and his partner opened a new business in a different suburb of Ahmedabad, but the threats to them continued. He claimed he received threats five times a day from February 2004 to June 2005. Towards the end of June 2005, he decided to leave Ahmedabad and Gujarat altogether. He returned after six months only to face “the same threats” as before;
d)on 31 March 2006, the applicant was attacked on his way home from his shop when he was “beaten mercilessly” and “left with a warning to leave Gujarat”. He said that he was warned that if he did not leave he would be killed. He claimed the police were not able to offer him any protection. He and his wife decided to leave India and said “we can be killed by Muslims or may be even by power hungry Hindu fundamentalists. Indian police can never protect us”; and
e)the applicant claimed to have tried to relocate within India without success.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 Tribunal accepted that the applicant was a member of the VHP in Ahmedabad and that his business was burnt during the communal strife in the state of Gujarat in 2002. However, the Tribunal found that there was no credible evidence that the applicant was targeted for reason of his membership of a particular social group, his religion or his political opinion. There was also no credible evidence before the Tribunal that since 2002 the applicant had been subject to further persecution;
b)in relation to the applicant’s claim that in March 2006 he was dragged out of his car and “beaten mercilessly” by a group of Muslim assailants who threatened to kill him, in the absence of any supporting information, the Tribunal doubted the veracity of the claims. Nevertheless the Tribunal was willing to give the applicant the benefit of the doubt in respect of these claims;
c)however, the Tribunal’s acceptance that the applicant may have been attacked did not necessarily assist his case because the Tribunal was of the opinion that the applicant was reasonably capable of relocating to other parts of India, if indeed he faces persecution in his city of Ahmedabad; and
d)in reaching this conclusion the Tribunal noted that there was no rational basis for the belief that the applicant and his wife would not be entitled to the same protection as other business people in other major cities in India.
In essence the Tribunal found that while the applicant may have been the target of attacks in Ahmedabad, he was capable of relocating elsewhere in India, noting, amongst other considerations, that he had given no persuasive reasons as to why he could not do so.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. RRT decision was infected by jurisdictional error and breached procedural fairness.
2. The decision now falls within the application of SAAP, which gives new definition of s242A [sic].
3. RRT breached s424A of the Migration Act, failed to disclose adverse information.
At the hearing today the applicant also took issue with the findings reached by the Tribunal.
Dealing with each of these grounds in turn:
RRT decision was infected by jurisdictional error and breached procedural fairness.
The first ground, as with all the other grounds, is not particularised and it is not identified by the applicant in his application, nor in his oral submissions to the Court, in what way the Tribunal’s decision is said to be infected by jurisdictional error, other than the alleged breach of s.424A pleaded in para.3 of the grounds of the application, or how it breached the requirements of procedural fairness.
In the absence of such particularisation and submissions, and in light of what appears in the Tribunal’s decision record, I am not satisfied that this ground, as it is pleaded, is made out. It appears, in any event, to be no more than a catch-all ground with no particular significance when divorced from the other grounds in the application.
The decision now falls within the application of SAAP, which gives new definition of s.424A
The second ground is one which also has no significance on its own account and should be read and understood in conjunction with the third pleaded ground.
RRT breached s.424A of the Migration Act, failed to disclose adverse information
In relation to the third pleaded ground, the breach of s.424A, the applicant has not identified today what information relied upon by the Tribunal falling within the requirements of s.424A was not provided to him. Section 424A provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application …
In this case the essence of the Tribunal’s decision was that the applicant did not have a well-founded fear of persecution for a Convention reason because he was reasonably capable of relocating within India. Consequently, in relation to the s.424A ground which is raised by the applicant, it is necessary to review the information on which the Tribunal relied when reaching that conclusion.
A consideration of the Tribunal’s findings and reasons in this connection indicates that the information upon which the Tribunal relied was information which was provided to it by the applicant for the purposes of the review. That being so, it falls within the exception found in s.424A(3)(b) with the consequence that the Tribunal had no obligation to give it back to the applicant under s.424A(1).
It has been suggested by the first respondent that some of the information upon which the Tribunal relied may have been a repetition of information previously given by the applicant to the Department and in his submissions the Minister refers to information concerning the applicant’s occupation as a farmhand and his previous employment as a diamond polisher and medicine salesman. It is clear from pages 82 and 81 respectively of the Court Book that this information was given by the applicant to the Tribunal during the course of the hearing.
In the event that there had been some prior provision of this information to the department, authorities such as Goo v Minister for Immigration & Citizenship [2007] FCA 391, SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609, SZESF v Minister for Immigration & Multicultural Affairs [2007] FCA 6 indicate that the repetition of such information at the Tribunal hearing brings it within the reach of s.424A(3)(b). As Allsop J said in SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 at [24]:
If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions will be information for the purposes of s.424A(3)(b).
Consequently, no jurisdictional error is demonstrated in respect of this asserted ground of review, nor was there in relation to the other pleaded grounds of review.
Applicant’s oral submissions
In relation to the applicant’s submissions today, what the applicant was seeking in effect was a review of the merits of his application to the Tribunal. It is not open to this Court in proceedings for judicial review to reconsider the merits of the applicant’s application. As the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 the Court is concerned with the Tribunal observing fair procedures. The Court is not concerned with whether the outcome at the Tribunal was a fair one.
These proceedings are brought with a view to determining whether or not there has been jurisdictional error by the Tribunal, not whether it has made an error of fact within jurisdiction. No error of jurisdictional fact has been raised. Consequently the applicant’s invitation to this Court to review the factual and merit findings by the Tribunal must be unsuccessful.
Conclusion
For these reasons, because jurisdictional error has not been demonstrated the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 30 May 2007
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