SZKJZ v Minister for Immigration
[2007] FMCA 1163
•19 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1163 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – applicant’s subjective fear insufficient – fear must be well-founded – what weight is accorded to evidence is a matter for the Tribunal – Tribunal under no obligation to obtain further information. |
| Migration Act 1958, s.91X |
| SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (2004) 52 FCR 437 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKJZ & SZKKA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 968 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 July 2007 |
| Date of Last Submission: | 19 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 968 of 2007
| SZKJZ & SZKKA |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 18 June 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 31 January 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) made on 15 November 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, his wife relying on her membership of the family unit. In these reasons, for convenience, the first applicant will be referred to as “the applicant”. The Tribunal described the applicant in the following terms:
The applicant is a married Hindu Gujrati man born on 31 May 1972 in Itadara Mehsana, India. He has had twelve years of education and can speak, read and write, Gujrati and Hindi, and can read and write English. He operated as a trader in India. (Court Book (“CB”) page 82).
The applicant claims to fear persecution in India because of his religious beliefs and political opinions.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision (CB 82-84). Relevantly, they are in summary:
a)the applicant had a business of trading in clothes, and the business was a partnership. The applicant was also the managing committee member of Sri Krishna Temple Asarwa and an active member of Vishawa Hindu Parishad (“VHP”);
b)in February 2002, along with his partner and other people, the applicant was returning from Ayodhya on a train which was stopped near Godhra and set on fire, killing 108 persons. Hindus blamed the attack on Muslims and reacted by killing Muslims, in response to which Muslims reacted by killing Hindus;
c)
on the evening of 27 February 2002 riots broke out and on
4 March 2002 the applicant learnt that his shop had been looted and set on fire. The applicant claimed that Muslims were intent on destruction and started threatening Hindus who had shops and business interests in the city of Ahmedabad;
d)the applicant claimed that he had received telephone threats at home and that he had been threatened with death by unknown Muslim fundamentalists. The applicant claimed that although the VHP started to take up the issue with the state government, there was virtually no progress and he had to live with fear and insecurity due to the anonymous telephone calls. The applicant said that the police provided no support; and
e)as a consequence, the applicant decided to go abroad.
The Tribunal records at CB 80 that the applicant first arrived in Australia on 8 January 2006, returned to India on 13 January 2006 and came back to Australia on 14 August 2006.
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 Tribunal found that the applicant’s four year delay in travelling to Australia after the riots and his subsequent return to India demonstrated he did not have any subjective fear of persecution by Indian Muslims. The Tribunal did not accept that the applicant thought Hindu-Muslim tensions were improving during the four years before he left India the first time and yet he was threatened following his return five days later. The Tribunal found this claim to be not credible;
b)the Tribunal put various questions to the applicant in relation to the political situation in Godhra, which the applicant was unable to answer. The Tribunal did not accept that the applicant was suffering from a loss of memory as a result of the threats he had received and found that this response was a contrived one to cover situations where the applicant did not know the correct answer;
c)the Tribunal also found that the Gujarati authorities were willing and able to protect the applicant, contrary to his claims. The Tribunal found that the applicant's claims that the authorities were not willing or able to protect him were not correct;
d)based on these conclusions, the Tribunal found the applicant was not a credible witness and it did not accept his claims that he was involved in the Godhra incident and subsequent riots, that he had lost property, friends and associates, or had been threatened by Muslims; and
e)the Tribunal further found that even if it was wrong in relation to the conclusions it reached concerning the applicant's involvement in these events, it was nevertheless satisfied that it was reasonable to expect the applicant to live elsewhere in India to avoid the harm he fears.
Proceedings in this Court
In his amended application, the applicant raises three grounds for consideration.
Tribunal misapplied the terms “well-founded fear” and “refugee”
The applicant asserts that the Tribunal misapplied the terms “well-founded fear” and “refugee”, in that it failed to give consideration to each separate aspect of the claim of fear made by the applicant and failed to assess the cumulative effects of the separate incidents upon him.
It is not necessary for the Tribunal to do what the applicant claims it ought to have done. Although the applicant may have had a subjective fear in relation to events which occurred at Godhra, it was also necessary for the Tribunal to consider whether such a fear was well-founded.
In this respect I adopt the first respondent's submissions, which are stated as follows:
The applicant's claim that the Tribunal failed to assess the cumulative effects of separate incidents related to the applicant's claims, or that it misunderstood and undermined the gravity of the applicant's situation, is misconceived. The Tribunal clearly rejected the applicant's claims to subjective fears based on past persecution, and in the alternative stated that even if the claims for subjective fears were accepted, the applicant could relocate, and therefore his fears were not well-founded.
The Tribunal was required to make an assessment as to whether the applicant's subjective fears were well-founded and to not make a decision based solely on the subjective fears of the applicant.
Further in relation to this ground, it should be kept in mind that the applicant's claim was to fear persecution from Muslims from which he received no protection from the Indian authorities. In considering this claim, the Tribunal found that it was not credible that the applicant did not know that the BJP was in power in Gujarat. It recorded country information showing there was clear support for Hindus by the Gujarati Police Force and that the BJP government gave instructions to the state police to go soft on the Hindu rioters and to allow them to vent their anger in the aftermath of the Godhra train incident (CB 97-98).
It should also be kept in mind that the applicant is part of the Hindu majority of Gujarat, and that at the relevant time there was a BJP government in Gujarat. Given these facts, it is hardly surprising that the Tribunal found that the applicant would not be persecuted in Gujarat or that his claims to fear persecution were not credible.
The Tribunal's credibility finding is a finding of fact which was open to it in the circumstances and is one which is not able to be reconsidered in proceedings for judicial review such as these.
The Tribunal also concluded that it was reasonable for the applicant to relocate within India, such a finding being a separate ground upon which the delegate's decision could be affirmed: SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 per Saville J at [23].
In relation to the issue of relocation, the Tribunal said this:
The applicant has had a good education, 12 years of education in India. He can speak, read and write Gujarati and Hindi and can read and write English, and will have no difficulty communicating in those parts of India where Hindi and English are spoken …
The Tribunal finds that the applicant does not have a political or religious profile which would attract the adverse interest of the Muslims in India. Further, there is no reason the applicant would come adversely to the attention of Muslims for reason of his political opinion or religion, or for any other reason, outside Gujarat …
… the applicant will enjoy the meaningful protection of the Indian police and other security institutions. (CB 98 – 99).
The Tribunal correctly applied the tests concerning the reasonableness of relocation found in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (2004) 52 FCR 437 and NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37.
The Tribunal's conclusions in relation to the question of relocation were open to it and are not demonstrative of error.
Consequently, in relation to the first ground of review, jurisdictional error has not been demonstrated.
Tribunal did not accord sufficient weight to the applicant’s oral evidence at the hearing and the applicant could not communicate effectively through the interpreter
The applicant says that the Tribunal did not accord sufficient weight to the oral evidence given at the hearing and that he was denied procedural fairness because he could not communicate effectively through the interpreter.
In relation to the first of these issues, the weight which is to be given to evidence, this is a matter peculiarly within the province of the Tribunal. The Tribunal is the finder of fact in proceedings such as these and it is its task to determine what evidence it relies upon and what weight it gives to that evidence. It is not open to this Court to take a view different from the Tribunal’s. In proceedings such as this the Court's role is to determine whether the Tribunal has properly applied the law, not to consider whether it would have arrived at factual conclusions different from those seen in the Tribunal's decision record.
In relation to the question of the translation at the Tribunal hearing, it is to be noted that there were two hearings: one on 8 January 2007 and another on 30 January 2007. The adjournment on 8 January 2007 was the result of the applicant feeling sick, having a headache and being unable to sit properly.
In respect of the first hearing day, the Tribunal reports the following:
The applicant stated that he wanted a Gujarati interpreter. The interpreter then stated that he was a Gujarati. The applicant had no objection to using the interpreter. The applicant stated that he could understand the interpreter. The Tribunal advised the applicant to indicate if he had trouble with the interpretation during the hearing. (CB 86).
The Court Book does not reveal whether the same interpreter attended both days of the hearing but, based on the conduct of the Tribunal on
8 January 2007, as reported at CB 86, it is apparent that the Tribunal was alert to the issue of possible translation problems and that the applicant had already been invited to express any concerns he had in relation to such an issue. There is nothing in the Tribunal's recounting of the evidence given on 30 January 2007 which supports any inference that translation problems existed on that occasion.
This is significant, given that the applicant has not put before the Court any evidence to support this allegation. In the absence of evidence such as a transcript of the Tribunal hearing and evidence from an interpreter, there is no basis upon which I can properly conclude that the applicant's allegation of poor translation services is well-founded.
Consequently I find that the applicant was not denied a real and meaningful hearing and that no jurisdictional error has been demonstrated in relation to the second ground of appeal.
Tribunal failed to examine all sources of available country information and relied on country information which was old and bias
In the third ground of review the applicant says that the Tribunal failed to examine all sources of available country information, and other evidence, and relied upon country information which was old and one-sided.
In relation to the first of these points, it is for the applicant to make out his claim and to lead the Tribunal to the appropriate level of satisfaction that he meets the criteria for a protection visa. Although the Tribunal has power to obtain further information, it is under no obligation to do so. The Tribunal has no duty to inquire, and this aspect of this asserted ground for review demonstrates no jurisdictional error.
Similarly, no jurisdictional error is demonstrated in relation to the claim that the Tribunal relied on old and one-sided country information. In VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104, the Full Court of the Federal Court said at [26]:
A Tribunal does not commit jurisdictional error when it prefers one body of country information over another.
Further, as a differently constituted Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
There can be no objection in principle to the Tribunal relying on "country information." The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact finding function … it is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal, not one for the Courts. If the Court were to make its own assessment of the truth of "country information", it would be engaging in merits review. The Court does not have power to do that.
The applicant fears persecution in India
Finally, in his submissions today the applicant repeated his concerns to fear persecution in India were he to return. In essence, he was inviting the Court to reconsider the merits of his application to the Tribunal. As has already been noted in these reasons, that course is not available in proceedings such as this and the applicant's submissions today revealed no basis upon which the Tribunal's decision should be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 9 August 2007
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