SZLKN v Minister for Immigration
[2008] FMCA 581
•6 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 581 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – relocation – no breach of s.424A – no breach of s.425. |
| Migration Act 1958, ss.424A, 425 |
| Applicant: | SZLKN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3033 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 May 2008 |
| Date of Last Submission: | 6 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3033 of 2007
| SZLKN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he feared persecution at the hands of the Jat community. He alleges that while in India he stood against someone from the Jat community at a college election. These facts allegedly resulted in an attack on him in Didwana in 2005. The applicant left India and arrived in Australia on 20 April 2007.
The applicant claims to fear persecution in India as a result of animosity from the Jats arising out of the acts of one of his uncles and the fact that the applicant stood against a Jat person at college elections.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 22 May 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Relevant Documents (“RD”) pages 76 – 81). Relevantly, they are in summary:
Protection visa application
In his protection visa application the applicant included a statement in which a migration agent, representing twenty-two clients from a regional sporting team including the applicant, asserted that:
a)they did not have civil and political freedom in India;
b)they suffered from poverty and starvation; and
c)these problems were as a result of their particular social group, being “farmers from Rajastan”.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)although his personal details in his original application were correct, his story, being his refugee claims, was not correct. His claims in his application, suggesting that as a farmer in Rajastan he had suffered from problems including poverty and starvation, were written by his solicitor but were not true. He had never been a farmer;
b)he had an uncle who had been murdered and he produced a First Information Report which referred to the alleged murder;
c)the family farmhouse was next to a cemetery and his uncle wanted to build a new way through the cemetery to their fields. When this came to the attention of the Jats a Court case ensued which was still ongoing and this was why his uncle had been murdered by people from the Jat caste;
d)when the applicant went to college in 2002 he had problems with the Jats who harassed him when he was in the canteen or the library. He initially said that this happened every day but subsequently said that it had not happened always but sometimes;
e)in 2004 in his final year in college, the applicant stood in the college elections as the candidate of the Student Federation of India which was not associated with any political party. Although a Jat had won the election, the Jat community still pursued him because they regarded it as a question of prestige that he had stood against someone from the Jat community. Because of this they tried to attack him in the market in Didwana in 2005;
f)after he completed his studies the applicant was involved in a committee in his village known as the Satayawni Manch which looked after the well-being of people from his caste. It had been in connection with his work with this committee that he had travelled to Didwana where he was attacked in the market in 2005. The police had started an investigation but no-one had been arrested;
g)after the attack the applicant moved to Jaipur but did not work there and his father had sent him money. He had been in hiding and had gone out only twice in two years. Nothing happened to the applicant while in Jaipur but he thought some people had been following him. Those people had not been able to find an opportunity to attack him. He had been moving around here and there because his life had been in danger.
h)after the attack on him in 2005 his family had received threats and his father had stopped farming;
i)the applicant confirmed that he claimed his life had been in danger in India because of the attack on him in 2005 which he said was due to the fact that his uncle had been wanting to build a new way through the cemetery and also because he had stood as a candidate against the Jat in college elections in 2004;
j)his father was still living in his village but could not leave the house. The Jats were a powerful community and they would have found out the applicant’s whereabouts after one or two months if he went to live somewhere else;
k)the applicant was not a true sportsman although had played the sport which brought him to Australia; and
l)a person had arranged for him to be included in the sporting tour because that person told the applicant it would be better for him to escape from India.
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)even accepting that the applicant was attacked in the market in Didwana in 2005 as he claimed, the Tribunal did not accept that he would not be able to find safety in one of the large cities in India;
b)in relation to the two reasons advanced by the applicant as the basis for the attack on him in 2005, the Tribunal considered his fears to be exaggerated on both counts:
i)with regard to the dispute over land, the Tribunal considered that if the local Jats had wanted to attack the applicant’s family they would have been able to do so and the fact that the applicant’s family continues to live where they always have indicates that the danger of such an attack is not as great as the applicant claims;
ii)with regard to the college election in which the applicant stood as a candidate against a Jat, the Tribunal noted that the applicant had finished his degree and lived at home for a year before the 2005 attack and then lived for two years in Jaipur;
c)the Tribunal did not accept that the Jat community would have wanted to pursue the applicant all over India for either of the reasons he suggested, nor did it accept that the Jats would be able to find him wherever he went;
d)the Tribunal did not accept that it would not be reasonable for the applicant to relocate to one of the large cities in India if he did not wish to remain in his home locality; and
e)the Tribunal did not accept that, were the applicant to relocate to one of the large cities in India, there is a real chance that he would be threatened, attacked, killed or otherwise persecuted by the Jats for reasons of his membership of the particular social group constituted by his family, his religion as a Muslim or his real or imputed political opinion based on him having stood against a Jat in college elections.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1)In the hearing I requested RRT to give time to put more docouents [sic] RRT refuesed [sic] to give it.
2)The RRT breached s.424A of the Migration Act in not giving written notice to me to make comments on the adverse information stated in the hearing and after the hearing before the decision was made.
At the hearing today the applicant potentially raised a further issue being a possible breach of the Tribunal’s obligations under s.425 of the Migration Act 1958 (“Act”). The applicant also raised today in submissions an allegation that the Tribunal had not listened to his claims properly.
Refusal to give time to submit documents
The first pleaded ground in the amended application relates to the applicant’s suggestion that he put before the Tribunal the First Information Report relating to the attack he alleged occurred in Didwana in 2005. The Tribunal records the applicant’s offer or request in the following terms:
The applicant said that after he had completed his studies he had been involved in a committee in his village known as the Satayawni Manch which looked after the well-being of people from his caste … He said that he had documents in relation to his participation in the committee which he could obtain from India. He said that it had been in connection with his work for the committee that he had travelled to Didwana where he had been attacked in the market in 2005. He said that he had lodged a complaint with the police and he could submit the FIR which was also in India. (RD 79)
…
The applicant repeated that he could produce the FIR and that he had thought that his life was in danger. (RD 80)
…
The applicant offered again to produce the FIR in relation to the attack on him in 2005 and the documents relating to his participation in the Satayawni Manch which he had said he could obtain from India. I indicated to him that I did not need these documents in order to make a decision on his application. (RD 81)
The first point to be made in relation to the first asserted ground of review contained in the amended application is that the Tribunal did not, in terms, refuse the applicant extra time. This is because it does not appear that that is what the applicant sought. To that extent this asserted ground of review is not made out. What the Tribunal did say was that the documents which the applicant suggested he might provide to the Tribunal were not needed by it. It can thus be inferred that the Tribunal was saying to the applicant that the documents he suggested he could submit would not assist the Tribunal in its deliberations. Consequently, what the applicant is really complaining of is that the Tribunal declined his offer to produce documents, not that it refused him time to produce those documents.
As the quotations from the Tribunal’s decision record at pp.79, 80 and 81 of the Relevant Documents reveal, the First Information Report which the applicant suggested he might submit related to his membership of the Satayawni Manch and the Didwana attack. The Tribunal did not reject the applicant’s allegations on these issues. What it said was:
As I indicated to the applicant in the course of the hearing before me, I consider that I do not need the documents which he said he could obtain from India in relation to the attack on him in 2005 and his participation in the Satayawni Manch in order to make a decision on his application. This is because, even accepting that the applicant was attacked in the market in Didwana in 2005 as he claims, I do not accept, as I put to him in the course of the hearing before me, that he would not be able to find safety in one of the large cities in India. (RD 81)
This quotation makes it clear that the reason why the documents proffered by the applicant would have been of no assistance to the Tribunal was because its decision turned on the question of relocation. The Tribunal found that it would be reasonable for the applicant to relocate and that he would not have a real chance of suffering the allegedly feared persecution were he to do so. As the documents would have been of no assistance to the Tribunal in reaching its decision on the matter on which the outcome of the review turned, the fact that it declined to receive them does not amount to jurisdictional error.
Breach of s.424A
At the hearing today the applicant further particularised this allegation by referring to having told a magistrate in India that his life was at risk, in respect of which event he could produce documents to the Tribunal.
Nothing in the Tribunal’s decision record suggests that the applicant referred to any proceedings in India before a magistrate or to the applicant having, for instance, raised his concerns with a chamber magistrate. Whatever the applicant’s dealings with the magistrate in India might have been and whether or not any documents exist associated with this contact, the applicant did not raise them with the Tribunal. They were not received but that was because the applicant did not mention them.
In his submissions today the applicant said that at the Tribunal hearing he did not get a chance to express himself on some issues. The way the applicant characterises his claim under this asserted ground of review does not, in terms, reflect the wording of s.424A of the Act. It more relates to s.425 to which I will return.
As to the pleaded claim, it must be noted that the Tribunal’s decision was based on independent country information and information provided to it by the applicant for the purposes of the review. Such information falls within the exceptions in s.424A(3). As a result, the information relied upon by the Tribunal was not required to be notified to the applicant pursuant to s.424A(1). As there were no s.424A(1) obligations in the context of this review, the fact that the Tribunal did not serve a s.424A(1) notice does not amount to jurisdictional error.
The applicant also raised the question of relocation in relation to this ground. However, the Tribunal’s findings in relation to relocation arose out of its consideration of the information which was before it. Conclusions are not “information” as that term is understood in the context of s.424A. Consequently, no obligation fell on the Tribunal to serve a s.424A(1) notice in relation to the reasoning process which produced its conclusion that the applicant could safely relocate in India.
Breach of s.425
The relocation issue might also be characterised as an allegation by the applicant that the Tribunal failed to notify to him of an issue which was determinative of his review application. A consideration of the Tribunal’s decision record reveals that such an allegation cannot be made out. It is apparent from the first full paragraph of p.9 of the Tribunal’s decision (RD 81) that the Tribunal put to the applicant the question of relocation and invited his comments on that issue. It is clear that the Tribunal did notify the applicant of this issue and gave him the opportunity to give evidence and present arguments in relation to it. As a consequence, no breach of s.425 is disclosed.
Tribunal did not listen to his claims properly
The applicant did not suggest in what way the Tribunal had failed to listen to his claims properly, although he made this allegation in submissions today. It is unclear whether or not the applicant alleges bias or bad faith on the part of the Tribunal but his allegation implies either that the Tribunal approached the review application with a mind that was not open to persuasion or that it did not approach its review task conscientiously. Such allegations are serious and must not only be clearly made but must also be proved by cogent evidence.
No evidence was adduced by the applicant to support the allegation that the Tribunal had not listened to his claims properly and the only evidence touching on the issue and which is before the Court is the Tribunal’s decision record. Nothing in that decision record supports a conclusion that the Tribunal’s mind was not open to persuasion or that it did not approach its task conscientiously. The fact that the applicant disagrees with the Tribunal’s finding, which appears to be the foundation of this allegation, is not a proper basis to allege that the Tribunal did not fulfil its task in the manner required.
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-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 May 2008
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