SZLKJ v Minister for Immigration

[2008] FMCA 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLKJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 130

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of India claiming fear of persecution on the ground of religion – relocation – no  reviewable error.

Migration Act 1958 (Cth), ss.425, 424A, 474

SZBYO v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: SZLKJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3030 of 2007

Judgment of: Scarlett FM

Hearing date: 4 February 2008

Date of Last Submission: 4 February 2008

Delivered at: Sydney

Delivered on: 4 February 2008

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3030 of 2007

SZLKJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant is a citizen of India, who asks the Court to review a decision of the Refugee Review Tribunal.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a protection (Class XA) visa.  The decision was signed on 18 August 2007, after a hearing which had taken place on 30 July 2007.  The Tribunal's decision was handed down on 6 September 2007. 

2. The applicant seeks a new hearing.  I have explained to the applicant this afternoon that in order for him to have a new hearing before the Refugee Review Tribunal the Court would need to be satisfied that there are grounds for setting aside the Tribunal decision.  I explained that for the Court to be satisfied that the Tribunal decision should be set aside, the Court would need to be satisfied that the decision was affected by jurisdictional error. 

3. The applicant, in an amended application, sets out why he believes the decision is affected by jurisdictional error.  He has said:

   All my convention claims are not assessed.  (1) All my convention reasons are not assessed; (2) adverse information raised after the hearing was not sent to me for my comments for the RRT decision.

4. In his original application the applicant said his grounds were: (1) RRT made legal error; (2) RRT breached procedures required by law. 

5. As the applicant is not legally represented I propose to consider all of the grounds that he has raised both in his original application and his amended application.  The Minister opposes the orders which the applicant seeks and has filed a response saying that the application has not raised an arguable case for the relief claimed. 

6. The background to this matter is that the applicant arrived in Australia from India in April 2007. On 30 April 2007 he applied for a protection (Class XA) visa. The applicant had travelled to Australia as part of a group of 22 players and nine officials from the Rajasthan Indoor Cricket Federation and they had come to Australia to play cricket matches.

7. The applicant has claimed that he had well founded fears if he were to return to India based on the social and religious discrimination which Muslims, and he is a Muslim, suffer every day in India.  It is his claim that the government of India indirectly supports attacks by Hindus on Muslims and Muslim sites in order to force Muslims to migrate to Pakistan, and that way India could become purely Hindu. 

8. The Tribunal wrote to the applicant and invited him to attend a hearing. He attended the hearing, and submitted a statement handwritten in English setting out his claims that his family had been persecuted ever since the partition of India in 1947. He claimed that his parents and his elder brother had been attacked and, in fact, his family had moved to another village about 27 or 28 kilometres from the village where they had lived.

9. He claimed that his father had been seriously injured and had received threats.  He claimed that his elder brother had, in fact, left the country and gone to England and that neighbours and relatives had, indeed, been killed by Hindu militants. 

10. The Tribunal member asked the applicant a number of questions about his claim and raised with him the issue of what had happened since his family moved from one village to another in December 2006.  The applicant told the Tribunal that no incidents had happened to him or to his family after they had moved at that time, but they feared that, perhaps, the same problems would occur again.

11. The Tribunal handed down its decision on 6 December 2007 refusing the applicant's claim for a visa. A copy of the Tribunal record can be found at pages 71 through to 81 of the Court Book. In that decision, the Tribunal considers the applicant's claims made in his application for a visa and summarised the applicant's evidence at the hearing in some detail from pages 75 through to 78 of the Court Book. The Findings and Reasons can be found on pages 78 through to 80 of the Court Book.

12. The Tribunal considered whether there is a real chance of the applicant as a Muslim in India could be faced with continuing violence and threats and discrimination relating to his religion as a Muslim or his membership of the social group constituted by his family or his real and imputed political opinion if he were to return to India at the time of the hearing or in the reasonably foreseeable future. 

13. The Tribunal considered the independent evidence available from the United States State Department on International Religious Freedom Report 2006 in relation to India, and Country Information Reports from the Department of Foreign Affairs and Trade from 25 January 2000 and 8 July 1998.

14. The Tribunal did not accept that the government of India indirectly supported attacks on Muslim or Muslim sites to force Muslims to migrate to Pakistan so that India would become purely Hindu.  The Tribunal accepted that the applicant had abandoned his studies for the degree of Bachelor of Arts in order to come to Australia, but did not accept on the evidence before it that if he were to return to India he would be discriminated against for reasons of religion as a Muslim in relation to his education or employment in such a manner or to such an extent as to amount to persecution involving serious harm.

15. Whilst the Tribunal did not find that the applicant had a well founded fear of being persecuted for convention reason if he were to return to India, the Tribunal did consider whether even if the applicant did have such a well founded fear that he would be able to relocate within India and formed the view that that would be reasonable. 

16. The Tribunal noted that this was discussed at the hearing with the applicant.  The Tribunal said:

    As I put to the applicant, I considered that this suggests, referring to Independent Country Information, that even if he had problems in his village he could have escaped these problems by moving elsewhere as it appears his family has, in fact, done[1].

    [1] See Court Book page 79

17. The applicant did not file written submissions but attended Court and made oral submissions.  I asked the applicant to expand on his claim that his convention claims and all his convention reasons had not been assessed, and the applicant took exception to the Tribunal's finding that he was able to relocate elsewhere in India if he were, in fact, subject to persecution in his home village. 

18. In respect of the applicant's claim of adverse information being raised after the hearing, which was not put to him for comments, which would constitute, perhaps, a claim of a breach of section 424A of the Migration Act, the applicant said that whilst he received a letter about the dismissal of his application, the Tribunal did not give him any reasons. I asked him if he had, in fact, received a copy of the Tribunal decision record and he said that he had.

19. The solicitor appearing for the Minister, Ms Anniwell, has submitted that the applicant's claims that the Tribunal failed to consider his claims cannot be maintained because the Tribunal expressly adverted to those claims and considered them in the context of independent country information before it concluded that he did not have a well founded fear of persecution for a convention reason.

20. As to the alleged breach of section 424A of the Act, in respect of a claim about information raised after the hearing, Ms Anniwell pointed out with some justification, that there was no information raised after the hearing. The Tribunal asked him at the hearing about the possibility of relocation and the applicant replied to it. There is nothing to show that the Tribunal relied on any information other than the applicant's evidence and independent country information.

21. Whilst the Tribunal referred to the applicant's claims in his written statement accompanying the application for protection visa, Ms Anniwell pointed out that the Tribunal did not rely upon that information in an adverse sense as being the reason or any part of the reason for affirming the delegate's decision.  See SZBYO v Minister for Immigration & Citizenship (2007) HCA 26 at [17] and [18].

22. Considering the first application, the original application, the applicant claimed a legal error and a breach of procedure.  No particulars are provided of these.  I am mindful of the fact that the applicant is not legally represented and I have read through the Tribunal decision myself independently of the submissions of either party in order to ascertain whether there is an arguable case for jurisdictional error.

23. There is no apparent breach of section 425 or section 424A of the Migration Act. The Tribunal invited the applicant to attend the hearing to give evidence about his claims and he did so with the assistance of an interpreter. There is no indication of any procedural unfairness in the procedure that the Tribunal adopted. Indeed, at the hearing the Tribunal member clearly put to the applicant the proposition that even if the applicant had a well founded fear of persecution in his area of India that he could relocate elsewhere, and the applicant replied to that.

24. In any event, it was unnecessary to make a relocation finding as the Tribunal was satisfied that there were no grounds, finding the applicant had a well founded fear of persecution for a convention reason based on his religion or membership of a particular social group, namely, his family or his real or imputed political opinions as a Muslim in India.  The question of relocation really only arises if an applicant does have a well founded fear of persecution in the applicant's home country. 

25. I am satisfied no jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined by section 474 of the Migration Act. Accordingly, it is not subject to orders in the nature of certiorari or mandamus, and it follows the application must be dismissed.

26. There is an application for costs on behalf of the first respondent Minister.  The applicant has been unsuccessful in his claim, and this is a proper matter for a costs order.  The amount of costs sought, namely, $2100 is an appropriate figure. 

27. I can advise that a sealed copy of the Court's orders will be made available by my Associate or my Court Officer within the next few minutes after we adjourn. 

28. I require a transcript of my reasons for this decision, and I will advise you that a written copy of the reasons for decision will be posted out to you in the next 10 to 14 days.  I thank our interpreter for her assistance to the Court this afternoon.  I will remove the application from the list of cases awaiting finalisation. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  4 February 2008