SZLLC v Minister for Immigration
[2008] FMCA 402
•27 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 402 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no evidence that applicant’s alleged tension at the Tribunal hearing prevented him from presenting his case – it may be reasonable to relocate within country of nationality – Tribunal has no duty to enquire. |
| Migration Act 1958, s.65 |
| SZATV v Minister for Immigration & Citizenship (2007) 81 ALJR 1659 SZFDV v Minister for Immigration & Citizenship (2007) 81 ALJR 1679 |
| First Applicant: | SZLLC |
| Second Applicant: | SZLLD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3083 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 March 2008 |
| Date of Last Submission: | 27 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2008 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3083 of 2007
| SZLLC |
First Applicant
| SZLLD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are a married couple who are citizens of India. The first applicant claims he is a Hindu and alleges that while in India he had a relationship with his Muslim business partner’s sister as a result of which she fell pregnant. The first applicant claims that this subsequently led to him being threatened by members of her family. The applicants arrived in Australia on 9 May 2007.
The first applicant claims to fear persecution in India because of the affair which he had with his business partner’s sister.
The second applicant is the wife of the first applicant. As she has no claims of her own, the first applicant will be referred to in these reasons as “the applicant”.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 6 July 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 application for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) pages 92 – 94). Relevantly, they are in summary:
a)the applicant is a married Hindu;
b)he entered into a business partnership with his friend who was a Muslim. His friend’s sister, Saguna, developed feelings for him and proposed marriage to him;
c)this was not possible as he was already married and because he was a Hindu and she a Muslim;
d)when the applicant tried to explain this to Saguna, she did not understand and set about destroying his reputation;
e)the applicant claimed that he “was hallucinated and made her pregnant”. Saguna’s brother found out and refused to give to the applicant his share of the business investment. He also threatened to kill the applicant and his family if the applicant did not marry his sister;
f)in September 2006 the applicant decided to leave India and travel to Singapore. He returned to India within 10 days as his wife, who remained in India, continued to receive threats from the applicant’s former business partner; and
g)after his return the applicant continued to receive threatening phone calls and was also mugged once.
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 did not accept the applicant’s claims, noting that:
i)it was inconceivable that a single Muslim woman in India would propose marriage to a married Hindu man who was employed and trusted by her elder brother;
ii)it was also inconceivable that she would then have had sexual intercourse with him and fall pregnant;
iii)the applicant was uncertain about the dates on which these events occurred;
iv)the applicant remained in the city for approximately 12 months after Saguna’s pregnancy and suffered no harm except for a mugging by persons whom he did not identify;
b)the Tribunal did not accept that the applicant had anything to fear in India, noting that he returned to India after he went to Singapore, Malaysia and Thailand;
c)the Tribunal found that while overseas the applicant was looking for alternative work opportunities;
d)the Tribunal found that even if the applicant’s claims were true, it would be reasonable for him to move to another city within India to escape from the family of his former business partner;
e)the Tribunal was not satisfied that the trouble the applicant claimed to fear was Convention related. It noted that:
i)even if there existed a particular social group of men who had impregnated single women, the fear the applicant claimed did not arise by reason of his membership of that social group, but because he had rejected the advances of Saguna or because of her pregnancy, or both; and
ii)religion was not a reason for the persecution he claimed to fear.
The Tribunal’s decision was summarised in the final three paragraphs of p.6 of its decision where it said:
In short, I do not accept that any of the events claimed to have occurred between the applicant and the sister of his employer in fact occurred. I therefore do not accept his claims as to any of the events which he stated followed as a consequence. I do not accept that he was threatened, attacked, mugged or told he had to marry her. Nor do I accept that there is a real chance of any of these things occurring should he return to India in the foreseeable future.
I further do not accept that the persecution the applicant claims to fear would be for a Convention reason.
Finally, even if these findings did not exist, I find that it would be reasonable and possible for the applicant to relocate within India and avoid any problems arising from the relationship he claims initiated his difficulties. (CB 94)
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. The Refugee Review Tribunal failed to exercise its powers in that the Honourable Tribunal Member did not understand the context of my statements during the hearing,
2. The Refugee Review Tribunal should not have considered relocation as sufficient protection in India.
3. The Refugee Review Tribunal failed to enquire into whether I was a victim of persecution by Muslims as it mistakenly thought that I was involved in a family matter.
Another potential ground was contained in the affidavit which the applicant filed on 5 October 2007. However, when queried by the Court today, the applicant expressly declined to press an assertion that the Tribunal had been prejudiced when considering his review application.
Turning to the grounds which have been pleaded.
Tribunal did not understand the context of the applicant’s statements
The meaning of this asserted ground of review is not apparent from the way it is expressed in the application. When asked today what the applicant meant by this ground, he said that at the Tribunal hearing he had been tense and “the context” to which he refers is that tension which he says he experienced. However, tension at hearings, whether they be Tribunal hearings or Court hearings, is unexceptional and in the absence of evidence of something more than mere tension and perhaps stress, a finding of jurisdictional error cannot be made. The applicant has put no evidence before the Court to suggest that such tension as he may have experienced at the Tribunal hearing was such that it rendered him incapable of properly representing himself or his wife at that hearing.
Although the applicant said today that he could not reply properly to the Tribunal’s questions, he also said that the Tribunal should have done nothing differently. A consideration of the Tribunal’s decision record discloses that the Tribunal hearing proceeded in an unexceptionable manner. It is apparent that the Tribunal asked the applicant questions to which he responded in an intelligible manner. There is nothing in the Tribunal’s description of the hearing before it which suggests that the applicant was unable to present his and his wife’s case.
In the circumstances, no jurisdictional error is disclosed by the first asserted ground of review.
Relocation
The applicant alleges that the Tribunal should not have considered relocation as sufficient protection in India. Certainly, the Tribunal need not have considered relocation, but this was because it found that the applicant’s claims were untrue, and that even if they had been true, they had no Convention nexus. Nevertheless, no doubt out of an abundance of caution, the Tribunal did consider the question of relocation. There was no error in it doing so, and it is to be noted that the existence and the content of the relocation principle has recently been confirmed and considered by the High Court in SZATV v Minister for Immigration & Citizenship (2007) 81 ALJR 1659 and in SZFDV v Minister for Immigration & Citizenship (2007) 81 ALJR 1679. As Gummow, Hayne and Crennan JJ said in SZFDV’s case at 1682 [14]:
As indicated in the reasons in SZATV, and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.
The Tribunal’s conclusion in relation to potential relocation was one which was quite open to it for the reasons it gave and this asserted ground of review discloses no jurisdictional error on the part of the Tribunal.
Failure to enquire
The Tribunal’s task is to determine whether or not it is satisfied that the applicant meets the criteria for a protection visa. Unless it is satisfied that an applicant meets those criteria, it must affirm the delegate’s decision: s.65 of the Migration Act 1958. In a practical sense, an applicant has a responsibility in his or her own interest to put information and arguments before the Tribunal to lead it to the state of satisfaction required by s.65. Although the Tribunal has power to make inquiries, it has no obligation to exercise that power, except possibly in certain very rare circumstances which do not exist here. The fact that the Tribunal did not undertake the inquiries which the applicant now appears to have wished that it had, is not demonstrative of jurisdictional error on the part of the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been proven, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 April 2008