SZKNA v Minister for Immigration

[2007] FMCA 938

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 938

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 425

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: SZKNA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1215 of 2007

Judgment of: Driver FM

Hearing date: 18 June 2007

Delivered at: Sydney

Delivered on: 18 June 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Nanson
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1215 of 2007

SZKNA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The Tribunal decision was signed on 28 February 2007.  It appears to have been handed down on 20 March 2007.  The applicant is from India and had made claims which might have been characterised as religious or political persecution.  Essentially, his claims appear to have been based on a fear of harm because of his Muslim religion. 

2. The applicant arrived in Australia on 14 July 2006. He applied for a protection visa on 25 August 2006. The Minister’s delegate refused that application on 9 October 2006. On 2 November 2006 the applicant applied to the Tribunal for review of that decision. The applicant was invited to a hearing and attended on 11 January 2007 to give evidence and present arguments. Following the hearing on 19 January 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant was invited to comment on what the Tribunal saw as inconsistencies between his written protection visa claims and his oral evidence at the hearing. The applicant responded on 12 February 2007. The Tribunal did not find that response persuasive. The Tribunal found that the applicant was not a member of Muslim social and political organisations as he had claimed. The Tribunal found that there were inconsistencies in the applicant’s testimony as between his written statement and his oral evidence. The Tribunal rejected his factual claims. The Tribunal went on to consider whether the applicant could relocate within India. The Tribunal found that the applicant could relocate to a Muslim dominated area of India such as Jammu and Kashmir.

3. I incorporate into the judgment by way of additional background paragraphs 2 through to 14 of the Minister’s outline of written submissions:

   The applicant is a citizen of India, a Muslim from Chennai.  He was born in 1970 and married in 1995.  From information set out in his application form, the applicant was consistently employed while living in Madras from 1988 to 1996 and then while in Dubai from 1997 to 2006.  The applicant arrived in Australia on 14 July 2006 and applied for a protection visa on 25 August 2006.[1]

   [1] Relevant Documents (RD) 1-39

   Before the Department, the applicant claimed Muslim rights were “refused and unjustified” by ruling Hindu dominated parties and that in protest he joined the Jihad Committee, the TMMK and the TNTJ.  However, the applicant also claimed he completed 12 years of schooling, had a stable employment background and travelled extensively including having lived abroad in Dubai.[2]  No evidence other than the applicant’s statement was provided in support of his claims.

   [2] RD 27-29

   The delegate refused the application for the following reasons:

   a)lack of corroborative evidence;

   b)no clear evidence to conclude that any political party was subject to   systematic State sponsored persecution;

   c)no evidence provided in support of claimed attacked by the applicant’s   political opponents in Dubai;

   d)conflicting evidence namely that his wife remained in India and that his     daughter was born there in 1999;

   e)it would be reasonable for the applicant to relocate within India.

   Before the Tribunal

   An application for review of the decision of the delegate was lodged with the Tribunal on 2 November 2006.[3] The applicant subsequently attended a hearing before the Tribunal on 11 January 2007. On 19 January 2007, the Tribunal issued a s.424A letter[4] requesting comment on a number of inconsistencies between the applicant’s written statement and oral history relating to:

   [3] RD 54-57

   [4] RD 63-64

   a)his employment in India and Dubai;

   b)the reason for his leaving India and travel to Dubai;

   c)contact with his wife and family;

   d)his reason for not returning to India and his return in 2004 for a ‘holiday’.

   On 12 February 2007, the applicant responded claiming[5]:

   [5] RD 76

   a)he worked in Goodwill Stores in Chennai from 1988 to 1996;

   b)that he left India for fear of Hindu extremist attacks and for financial reasons;

   c)that he did not visit his family for 7 years but only after 2005;

   d)that he visited them twice, staying in hiding places and returning to Dubai;

   e)that he considered returning in 2005 but did not do so because he “had to    face difficulties still they remembered me”.

   The Tribunal summarised the applicant’s claims as being that he was an active member of certain Muslim political and social organisations in India and that he faced persecution from opponents of those organisations.  The applicant claimed a fear of persecution for reasons of his religion and his imputed political opinion.  The applicant claimed he was compelled he was compelled to flee to the United Arab Emirates, was unable to visit his family in India and unable to relocate within that country.

   The Tribunal affirmed the decision under review for the reasons set out below.

   The applicant had not provided sufficient information to support his claims of membership of certain Muslim political and social organisations both in India and/or Dubai.  In the absence of any such information, the Tribunal was not satisfied the applicant belonged to any such organisations as claimed.[6]

   As a consequence of this finding, the Tribunal was not satisfied the applicant fled India to Dubai because he was of adverse interest to such extremist groups in India.[7]

   In addition, the Tribunal was not convinced by the explanation given by the applicant in response to its s.424A letter on this point considering it implausible that the applicant would say he left India to go to Dubai for financial reasons if indeed his real reason for leaving was that he needed to escape the country to avoid being targeted by Hindu fundamentalists.[8]

   The Tribunal also considered the applicant’s ability to visit his family in India on at least two occasions undermined his claim that he feared for his life in that country.  The Tribunal did not accept the applicant had met his family in ‘hiding places’ finding instead that the fact the applicant was willing to visit his family on holidays undermined his claim that he feared returning to India because of threats to his life.[9]

   The Tribunal noted the applicant was not able to provide any credible evidence or information as to the difficulties the applicant said he experienced on his return to India and rejected those claims.[10]

   Finally, on the basis of general information, the Tribunal concluded that the   applicant could relocate to other regions of India where Muslims were in the majority - an issue discussed with the applicant at the hearing.[11]

   [6] RD 92.5

   [7] RD 92.8

   [8] RD 93.3

   [9] RD 93.6

   [10] RD 93.8

   [11] RD 94.5

4. These proceedings began with a show cause application filed on 13 April 2007.  The application asserts actual notification of the Tribunal decision on 20 March 2007.  I find that the application was filed within time.  The applicant now relies upon an amended application filed on 12 June 2007.  On the same day the applicant filed written submissions.  The amended application and the written submissions assert numerous jurisdictional errors.

5. The Minister asserts that the applicant has not established an arguable case for relief.  The Minister filed an outline of submissions on 12 June 2007.  Those submissions were responsive to the original rather than the amended application although there is some overlap between the original application and the amended application and submissions.  The applicant had also filed an affidavit with his original application which essentially comprised submissions.  The applicant told me from the bar table that he thought what was in the affidavit was covered in his amended application and submissions.

6. I have before me as evidence a book of relevant documents filed on behalf of the Minister on 4 May 2007.  That is the only evidence I have before me.  I gave directions in relation to this matter on 7 May 2007.  At that time I gave the applicant the opportunity to file and serve affidavit material including a transcript of the Tribunal hearing by 12 June 2007.  He has not done so. 

7. Nevertheless, in his oral submissions the applicant asserted that the hearing opportunity before the Tribunal was inadequate and unfair.  The applicant asserted from the bar table that he was not give a proper opportunity to speak at the hearing.  He further asserted that the interpreter who had been booked for the Tribunal hearing was called away to another appointment.  I asked the applicant why this had not been mentioned in his original or amended application or in his written submissions.  He told me that a page had been inadvertently omitted from one or other of those documents or possibly both of them. 

8. The amended application appears on its face to be complete. The written submissions comprise four numbered pages and the last page is signed. I put to the applicant that if there had been a significant problem at the hearing I would have expected it to have been mentioned before now. The applicant told me that he had not done so because of his lack of understanding of the issues. In any event, I have no evidence before me to support the contention that the applicant was not given a fair hearing opportunity. The Tribunal decision at pages 87 to 90 of the court book sets out a detailed description of what occurred at the hearing. It appears from that that the applicant did have a reasonable opportunity to say what he wanted to the Tribunal. I reject the contention made orally that the Tribunal did not meet its obligations under s.425 of the Migration Act.

9. The amended application is in template form.  So are the applicant’s written submissions.  In paragraph 2 of the submissions someone has whited out reference to some other country and handwritten in the word “India”.  This suggests to me that the applicant’s documents have been copied from some other application.  The applicant told me that he had been assisted by someone who attends his local mosque.  Apart from their template form the amended application and submissions suffer from a lack of particulars and a lack of a factual connection with the Tribunal decision.

10. Ground 4 in the amended application is the same as ground 1 in the original application.  That is dealt with in the Minister’s written submissions at paragraphs 15 and 16.  I adopt those paragraphs for the purposes of this judgment:

    This is not a proper ground of review.  The Tribunal did not refer to any specific or general country information in its decision.  Other than in relation to the relocation issue (which was impliedly based in part upon general knowledge of Muslim majorities in certain States of India), the Tribunal’s findings were based upon inconsistencies and uncertainties contained in the applicant’s oral and written evidence alone. 

    In any event, the assessment of country information is a matter for the Tribunal:  NAHI v Minister for Immigration [2004] FCAFC 10. Any factual findings arising therefrom are not open for further merits review by this Court.

11. The Minister’s submissions also deal with ground 3 of the original application which is reproduced in paragraph 4(b) of the applicant’s written submissions.  I agree with and adopt for the purposes of this judgment paragraph 18 of those submissions:

    The applicant has not indicated which “elements” of his claims were left out and, in any event, the Reasons of the Tribunal speak to the contrary.  The Reasons show the Tribunal considered the applicant’s history in its entirety but was not satisfied as to the credibility of the claims put forward.  Without   more this ground cannot succeed.

12. In my view, there is no substance to any of the asserted jurisdictional errors with one possible exception. There was no denial of procedural fairness and the Tribunal considered all of the applicant’s claims. The Tribunal did not apply the wrong test by requiring independent evidence of any particular fact before it would accept it. The Tribunal did not display bias and the Tribunal met its obligations under s.424A of the Migration Act. The Tribunal also applied s.91R of the Migration Act to the extent that it had any relevant application. The Tribunal applied article 1A(2) of the Convention to the extent that it was relevant[12].  There is no evidentiary basis to support the claim that the applicant’s case is the same as that in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.

    [12] Having rejected the applicant’s factual claims the Tribunal did not need to consider whether the applicant would suffer persecution in India based on those claims.

13. Paragraph 5 of the applicant’s written submissions asserts that the Tribunal acted illogically when considering that some state of India with a Muslim majority, ie Jammu and Kashmir, would be a place where the applicant could live in relative peace.  The applicant asserts that in making that finding the Tribunal failed to consider the circumstances surrounding the matter and decided the issue by making a speculative statement.  The Tribunal said on page 94 of the court book:

    Even if the Tribunal was to accept, which it does not, that the applicant was a member of certain Muslim organisations, and that he has a well founded fear of persecution because of his activities with these organisations in where he lived [in] India, this would not assist the applicant.  This is because, as the Tribunal noted to the applicant in the course of the hearing, there are large Muslim populations found in some states of India with Muslims being a majority in Jammu and Kashmir.  In these states, the applicant can live in relative peace, and be safe from any forms of harassment from Hindu fundamentalists. 

14. If that relocation finding had been a necessary element of the Tribunal decision an arguable case of jurisdictional error would have been established.  In considering relocation the Tribunal must consider practical issues.  In the case of Jammu and Kashmir it is notorious that those practical issues would involve a consideration of the security situation.  There was no such consideration.  However, the relocation finding was not a necessary part of the Tribunal decision.  The Tribunal was not in any doubt in its rejection of the applicant’s factual claims.  Accordingly, the Tribunal did not need to consider what the situation would be if it was wrong in rejecting the applicant’s claims.  Having found that the applicant did not face a real risk of persecution in India it was unnecessary for the Tribunal to consider whether the applicant could locate within India.

15. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error; neither is any arguable case of jurisdictional error apparent to me from my own reading of the material. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

16. The application having been dismissed costs should follow the event.  The Minister seeks party party costs of $2,400.  Scale costs in this matter would be $2,500.  The applicant says he cannot pay costs but that is not a reason for the Court to refrain from making an order.  I am satisfied that costs of not less than $2,400 have been reasonably and properly incurred on behalf of the Minister on a party and party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the hearing fixed in that amount.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 June 2007