SZKHE v Minister for Immigration
[2007] FMCA 1323
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1323 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. The Tribunal’s conclusions are not “information” for the purposes of s.424A – discrimination not so serious as to amount to persecution – relocation to escape persecution was reasonable. |
| Migration Act 1958, ss.91R, 91X, 424A |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicants: | SZKHE, SZKHF, SZKHG & SZKHH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 738 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 June 2007 |
| Date of Last Submission: | 25 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 738 of 2007
| SZKHE, SZKHF, SZKHG & SZKHH |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 18 May 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 15 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 23 October 2006 refusing the applicants’ application for protection visas.
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, his wife and two children relying on their membership of his family. For convenience, therefore, the first applicant in these proceedings will be referred to as the applicant. The Tribunal described the applicant as follows:
… he was a citizen of India, born in Hyderabad on 2 February 1970. He stated he was a Muslim. He stated he completed his education in 1989 and he worked in sales at Fancy Electrical from 1996 until 2006. The applicant indicated that he married in 1996 and he had two children. (Court Book (“CB”) page 150)
The applicant claims to fear persecution in India because of his involvement with the Majlis Atthad ul Muslimeen (“MIM”).
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 150-153). Relevantly, they are in summary:
a)the applicant was discriminated against when he tried to enter higher education because his father was a coordinator of the MIM;
b)the applicant became a member of the MIM in 1996 and he attended meetings, collected funds, participated in social welfare activities and campaigned for the party during elections. He became the coordinator of the Khilwat branch in 2004 and his duties included dealing with criminal gangs and ensuring the safety of members;
c)in October 2005, a drug dealer named “Reddy” kidnapped an MIM member from Khilwat and demanded $500,000 ransom. In November 2005, the MIM decided against paying the ransom and in December 2005 they sought assistance from the police. The police decided not to arrest the drug dealer Reddy. Members of the MIM held a protest rally to express their dissatisfaction. During the rally a few men with automatic weapons opened fire against MIM members and seven people were injured;
d)the applicant received a message from the drug dealer Reddy, telling him not to seek assistance from the police and to pay $500,000. The drug dealer said he would threaten the applicant’s entire family if the applicant did not comply. The applicant went to police for assistance, but they told him there was a lack of evidence;
e)in March 2006, the applicant came to Australia because he was stressed. He assumed that things would get better in his absence. However, when he returned to India in April 2006, he was arrested in relation to a drug case and detained for three days. He was mistreated in detention and was told not to pursue the case against the drug dealer. The MIM intervened and secured his release;
f)in June 2006, the police raided the applicant’s home and accused him of smuggling weapons. The police accused the applicant of hiding two semi-automatic guns in his bedroom. The MIM was in power at the time and the incident caused embarrassment to the party. The party issued a statement that it would remain impartial until the police had completed their inquiries. The MIM refused to assist the applicant. He was held for three days while the matter was investigated and released on bail;
g)in July 2006, the applicant decided to leave the country because he anticipated life-threatening harm and harassment from the police and gangs because of his affiliation with the MIM. He claimed that in India he would either be imprisoned by the police or killed by the drug dealer;
h)at the Tribunal hearing the applicant said:
i)he was targeted by a drug dealer, Shundarshan Reddy, and his gang because he repeatedly reported him to police for selling drugs in his area. The applicant stated the drug dealer and his gang threatened to harm him and his family so they fled to Australia. The applicant claimed that the police could not protect him from the persons he feared. He stated that the drug dealer was too influential in that area and he could bribe the police;
ii)associates of Reddy came to the applicant’s home in October 2005 and threatened to kill him. The applicant claimed that they were angry with him because he was preventing them from expanding their drug selling activities in Khilwat. He stated he was told to stop going to the police;
iii)the applicant stated that relocation within India was not a viable option for him and his family because Reddy might discover where he lived;
iv)the applicant stated he was no longer involved with the MIM and that he no longer enjoyed the protection of MIM. The applicant claimed that without MIM protection Reddy and his associates would be able to harm him.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it 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 applicant did not present his claims consistently and had limited knowledge regarding the MIM. These factors raised questions for the Tribunal as to whether the applicant had provided a truthful account of his circumstances in India. Nevertheless the Tribunal decided to give the applicant the benefit of the doubt;
b)the Tribunal found that the applicant’s difficulties with drug dealers and the police in Hyderabad were confined to Hyderabad at a particular time when he was involved with the MIM. The Tribunal found that the applicant could avoid difficulties with drug dealers and police in Hyderabad by relocating within India. The Tribunal was satisfied that the applicant had the skills, knowledge and resources to relocate his family within India and was satisfied that it was reasonable for the applicant and his family to do so;
c)the Tribunal found that the applicant’s difficulties with drug dealers and police related to his activities in Hyderabad when he was living there and working for the MIM. The Tribunal was satisfied that the chance was remote that the applicant would be subjected to persecution by drug dealers and police from Hyderabad if he no longer lived there;
d)in relation to the applicant’s claim that he was discriminated against when he sought tertiary education because his father was involved with the MIM, the Tribunal accepted the claim but found that the discrimination was not of such nature or extent as to amount to persecution for Convention purposes.
Proceedings in this Court
The grounds of the amended application can be summarised as a claim that the Tribunal breached s.424A of the Act in relation to the following matters:
a)the application for a protection visa was rejected because the applicant did not present his claims consistently and he had limited knowledge of the MIM;
b)the Tribunal did not give the applicant an opportunity to comment on the question of relocation or the Tribunal’s reasons for reaching its decision on relocation;
c)the Tribunal did not give a reason why the accepted discrimination was not for a Convention reason;
d)the Tribunal erred by requiring the applicant to present his claim consistently, and to have a level of knowledge of MIM, when s.91R of the Act did not require this.
At the hearing the applicant raised additional matters, namely:
a)when the applicant appeared before the Tribunal the only issue was the possibility of relocation;
b)the Tribunal said that the applicant did not have a proper knowledge of his political party;
c)the Tribunal did not hear or take evidence from the applicant’s family;
d)the Tribunal did not consider that it would be difficult to relocate.
Dealing with each of these grounds in turn:
Breach of s.424A
The first of the particulars set out in the amended application asserts that the reason why the review application to the Tribunal was unsuccessful was because the applicant did not treat his claim consistently and had limited knowledge of the MIM, and, apparently, that this raised some obligations on the Tribunal pursuant to s.424A. At the relevant time, that section provided:
(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 …
However, the basis of the Tribunal’s decision was not a failure to make a consistent set of claims or the applicant’s limited knowledge of the political group of which he claimed to have once been an active member but, rather, the reasonableness of the option open to the applicant of relocating within India to escape the mistreatment which he alleged he suffered in Hyderabad. Consequently, this particular of the asserted ground of review is misconceived and does not demonstrate a breach of s.424A.
As to the second particular of this ground, in order to demonstrate a breach of s.424A it is necessary to show that some information, not falling within the exceptions set out in s.424A(3), and not already the subject of a s.424A(1) notice, has been relied upon by the Tribunal as the reason or part of the reason for affirming the delegate’s decision. This particular of the alleged breach of the section does not do this. What is identified in the second particular is a conclusion drawn by the Tribunal from the information which was before it. The applicant has not indicated, nor suggested, that any of that underlying evidentiary information raised a s.424A obligation which was not satisfied. Rather, he challenges the conclusion. However, the Tribunal’s thought processes and conclusions are not “information” as that term is understood by s.424A. As Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ said in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
The conduct of which the applicant complains in the second particular of the alleged breach of s.424A does not amount to an incorrect use of information but to a conclusion which is unaffected by the operation of the section. Consequently this particular does not disclose a breach of s.424A by the Tribunal.
Finally on this point, contrary to the applicant’s assertion that he was not given an opportunity to comment on the question of relocation, para.5(h)(iii) above indicates that the question was canvassed at the Tribunal hearing. Thus, this element of this ground is not made out on the facts.
Reasons not given
In this ground, part of the applicant’s allegation is that the discrimination he claimed was perpetrated against him was found by the Tribunal to be discrimination which did not fall within the scope of the Convention, in that it was not discrimination [sic] for a Convention reason. However, that is not what the Tribunal decided. Its finding was that the discrimination which the applicant suffered did not amount to persecution. At CB 154 the Tribunal said:
The Tribunal considered the applicant’s claim that he was discriminated against when he sought tertiary education because his father was involved with the MIM. The Tribunal accepts the claim but finds that the discrimination was not of such nature or extent to amount to persecution for Convention purposes.
In this regard, sub-s.91R(1) and (2) of the Act provide:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Consequently, the Tribunal’s finding, which was open to it on the information before it, was that this conduct of which the applicant complained, and which the Tribunal did find was discrimination, did not meet the test of what amounted to persecution. In this respect, the Tribunal had, earlier in its decision record at CB 149, discussed the test found in s.91R.
Moreover, the reasons for the Tribunal’s decision on the relevant point, which is not the point raised by the applicant, were clear enough. Consequently, the Tribunal did not fail to give reasons in respect of the relevant finding.
No jurisdictional error has been demonstrated in respect of this asserted ground of review.
The Tribunal misapplied s.91R
In this ground, what the applicant is really saying is that the Tribunal erred in law by saying that to prove persecution, the applicant’s claim had to be presented in a consistent manner and that the applicant had to have a certain level of knowledge regarding the MIM. The Tribunal did not say that. It said that the inconsistencies in the applicant’s claims and his limited knowledge relating to the MIM raised questions as to his truthfulness but, at the end of the day, it gave him the benefit of the doubt. The Tribunal accepted that the applicant was involved with the MIM and, as a consequence, was threatened and harassed by drug dealers and corrupt police in Hyderabad.
As to the reference to s.91R which the applicant made in respect of this asserted ground of review, the relevant portions of its provisions are quoted above at [15]. Sub-sections 91R(1) and (2) are a test of what amounts to persecution for the purposes of the operation of the Convention in Australia and thus questions of consistency and knowledge do not have any relevance to them. But, as has already been noted in these reasons, the persecution which the Tribunal implicitly accepted had occurred in Hyderabad was found not to justify a well-founded fear of persecution in the future because of the reasonableness of the relocation option.
When the applicant appeared before the Tribunal the only issue was the possibility of relocation
A consideration of the Tribunal’s decision reveals that its principal concerns were whether the applicant had been persecuted when he was in Hyderabad, whether it was reasonable for him to relocate and thus escape that persecution and whether the discrimination in tertiary education amounted to persecution. Clearly, the question of relocation could only emerge as a matter of relevance if it was determined that there was some merit to the applicant’s claim of persecution in Hyderabad. Although the Tribunal did not go so far as to find that the applicant would be persecuted for a Convention reason were he to return to Hyderabad, it nevertheless implicitly found that he had been persecuted in the past. Presumably on the assumption that the previous persecution properly founded a fear of persecution in the future, it then turned to the question of relocation.
Consequently, it is not accurate of the applicant to say that relocation was the only issue which was considered. Rather, it was a naturally consequential consideration which was only raised after the applicant was given the benefit of the doubt in relation to his underlying claims of persecution in Hyderabad. Thus, on the facts, this ground is not made out.
The Tribunal said that the applicant did not have a proper knowledge of his political party
The Tribunal’s conclusion that the applicant had a limited knowledge regarding the MIM was a conclusion which was open to it on the facts. Factual findings within jurisdiction, which this was, are not susceptible to reconsideration in judicial review proceedings such as these. Consequently, jurisdictional error is not demonstrated in respect of it. In any event, as already noted more than once in these reasons, the Tribunal gave the applicant the benefit of the doubt notwithstanding his lack of knowledge of the MIM and thus, to that extent, this ground is misconceived.
The Tribunal did not hear or take evidence from the applicant’s family
The s.425A letter sent by the Tribunal to the applicant, reproduced at CB 129-130 reveals that the applicant was invited, together with his wife and children, to attend the Tribunal hearing. The “RRT Hearing Record” reproduced at CB 131 indicates that it was only the applicant who attended. The applicant’s wife and his children had been invited to attend to give evidence but did not. As a result, no error is disclosed because no evidence was taken from them by the Tribunal.
The Tribunal did not consider that it would be difficult to relocate
The Tribunal’s decision record indicates that when asked why relocation was not a viable option for the applicant and his family, the applicant replied that the drug dealer, Reddy, might discover where he lived (CB 152). The applicant has not disputed this recounting of the evidence either in his submissions or by putting contradicting evidence before the Court. Although in submissions to the Court the applicant said that it would be difficult for him to re-settle with his wife and children, and to close up business and that, in any event, it was not truly possible to hide in India because one could be found, it was only the latter point which was raised with the Tribunal. On that point, the Tribunal’s conclusion was that the applicant’s difficulties with drug dealers and policemen were related to his Hyderabad-based activities and that if he no longer lived there the chance was remote that persecution would follow him. This was a conclusion which was open to the Tribunal. Further, the limited basis of the applicant’s submission to the Tribunal meant that the conclusion reached by the Tribunal was not a surprising one.
Consequently, no error is disclosed in the Tribunal’s approach to the issue of relocation within India.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 17 August 2007
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