SZLMU v Minister for Immigration
[2008] FMCA 83
•29 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 83 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – claim of well-founded fear of persecution because of being a member of the Muslim minority in India – no grounds shown on application – no merits review – no reviewable error shown. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZLMU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3218 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 January 2008 |
| Date of last submission: | 29 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Mitchelmore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3218 of 2007
| SZLMU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that was signed on 29th August and handed down on 20th September 2007. In that decision the Refugee Review Tribunal affirmed a decision by a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to declare that the notification by the delegate and the Tribunal to refuse to grant a Protection visa to be invalid. He asks for a writ of certiorari to quash the decision of the Refugee Review Tribunal. He also asks for an order that no action will be taken to remove him from Australia while the decision is pending.
I would comment that it is not within the jurisdiction of the Court to make any finding about the validity or invalidity of the notification by the delegate of the Minister. I do not hear any argument about the claim that the Tribunal's notification of its decision was in some way invalid. I have informed the Applicant that in order for the Court to be satisfied that the Tribunal's decision should be set aside, the Court would need to be satisfied that the decision was affected by jurisdictional error.
The Applicant has set out in his application six grounds in which he claims that the Tribunal has fallen into jurisdictional error.
Background
The background to this matter is that the Applicant arrived in Australia on 8th February 2007. He applied for a Protection (Class XA) visa on 22nd March 2007. He did so because he claimed that he feared for his safety if he remained in India because he had formed a relationship with a woman of another religion. The Applicant is a Muslim and the lady with whom he is in love is a Hindu. The Applicant claims that the lady's father had warned him to stay away from her and has threatened and attempted to kill him.
The delegate of the Minister refused the application for a visa on 3rd May 2007. On 29th May the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the Applicant and invited him to attend the hearing and a hearing took place on 24th August 2007.
Before the hearing the Tribunal had sought further information from the Applicant on several occasions. The Tribunal wrote two letters to the Applicant on 6th July 2007. Each of the two letters appears to have been written under the provisions of s.424 of the Migration Act. The Applicant replied to those letters on 31st July 2007 and copies of his replies can be found on pages 56 through to 58 of the Court Book.
The Tribunal again wrote to the Applicant on 1st August 2007. This further letter was an Invitation to Comment on Information in writing. A copy of the letter appears on pages 63 through to 65 of the Court Book. It is quite clearly a letter written under the provisions of s.424A of the Migration Act. The Applicant appears not to have forwarded a written reply to that letter. He did, however, appear at the Tribunal hearing on 24th August 2007. He gave evidence with the assistance of an interpreter.
The Tribunal signed its decision on 29th August and handed it down on 20th September 2007. A copy of the Tribunal decision can be found at pages 81 through to 108 of the Court Book. In that decision record the Tribunal sets out in a section headed “Claims and Evidence", information taken from the Applicant's statement when he applied for a Protection visa. It also sets out copies of the two letters written under the provisions of s.424 on 6th July 2007 and a copy of the s.424A letter on that same date. It sets out copies of the Applicant's responses and the further s.424A letter dated 1st August 2007. It also contains a summary in some detail of the Applicant's oral evidence to the Tribunal.
The Tribunal referred to Independent Country Information on the subjects of:
· A Hindu militant organisation called the Rashtriya Swayam Sewak Sangh (RSS).
· Inter-religious marriages.
· Relocation in India.
· The areas of India in which the Tamil language is spoken.
· Recent developments about the political situation in Indian states.
· The political situation in Kerala.
· Whether there is an Anti-Hindi movement in the state of Tamil Nadu.
· Hindi nationalism in Kerala.
· Institutions in India, including the government and the judiciary.
· Freedom of religion and freedom of movement in India.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out at pages 105 through to 108 of the Court Book. The Tribunal accepted that the Applicant was a national of India based on his Indian passport and other evidence. The Tribunal accepted the Applicant's claim that he had fallen in love with an Indian girl whose father was a strong member of the anti-Muslim organisation called the RSS.
The Tribunal accepted the Applicant's claim that the lady's father had threatened to kill him and notwithstanding certain inconsistencies in his evidence and his failure to provide corroborative evidence about some matters such as his mother's hospitalisation, the Tribunal accepted his claims; noting that his credibility had come under scrutiny.
What the Tribunal proceeded to do is make a finding that the Applicant could relocate within India. The Tribunal found that it was reasonable for the Applicant to relocate from Tamil Nadu to Kerala which is a state that has a 25 per cent Muslim population. The Tribunal found that the BJP and other Hindu extremist groups such as the RSS had been weakened over the past few years in Kerala and that there was no serious threat to the religious freedom on non-Hindu communities.
The Tribunal noted in Independent Country Information about the Tamil language. At page 97 of the Court Book the Tribunal noted that:
Tamil is spoken by 86.7 per cent of the population of Tamil Nadu and by 2.3 per cent in Kerala and 1.1 per cent in Andhra Pradesh.
The Tribunal considered the political and judicial system of India and based on Independent Country Information and the Applicant's own evidence, formed the view that it was reasonable to relocate to Kerala and that the Applicant would be unlikely to suffer a real chance of persecution from the father of the woman with whom the Applicant has fallen in love or a Hindu extremist organisation.
Accordingly, the Tribunal affirmed the decision not to grant the Applicant a protection visa.
Application for Judicial Review
The Applicant sets out six grounds in his application:
i)That the Tribunal's decision was affected by jurisdictional error in that the Tribunal did not take into account relevant considerations central to his claims.
ii)That the Tribunal failed to carry out its review function and to exercise its jurisdiction by not considering that the Applicant had been under pressure from the RSS and his girlfriend's family by not considering his claim that members of the RSS would kill him if he were to return to India and by failing to investigate his genuine claims under the Migration Act.
iii)The Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction and denied him procedural fairness by failing to investigate his genuine claims.
iv)The Applicant claimed the Tribunal used the general information to weigh against his case in the final outcome and considers that that formed a jurisdictional error.
v)The Applicant claimed that the Tribunal emphasised irrelevant questions at the hearing and ignored his minority background. He claims that the Tribunal ignored relevant material and made findings which were erroneous or mistaken.
vi)The Applicant claimed the Tribunal applied the wrong test by:
(a) Leaving individual elements of his claims and
(b) By requiring independent evidence of the facts before accepting his claims which was placing too high an onus of proof on him.
The Applicant told the Court that he had provided evidence to the Tribunal about an incident at the Munir Temple although he said that the Tribunal claimed that he had not provided such evidence. The Applicant took exception to the Tribunal's finding that he could relocate to Kerala and that he would not be in danger there. He said that the lady's father and the RSS would be able to trace him if he went to Kerala through his ration card or through the electoral role and his identity card.
The Applicant claimed that the Tribunal had found that he gave misleading or incorrect evidence in an interview when he arrived at the airport and said that he was not aware when he arrived that he would receive a protection visa. He apologised for giving incorrect information.
The Applicant also said that if he, as a Muslim, were to marry a Hindu girl before she converted to Islam, then his life would be in danger from an extremist Muslim organisation. However, in respect of that last claim; the Applicant conceded that he had not given that information to the Tribunal. Accordingly, there could be no failure by the Tribunal to consider information that was not before it.
Ground 1 – Failure to Consider Claims
Dealing with the grounds in the Applicant's application; I am not satisfied that the Tribunal decision shows that he did not take relevant considerations into account. It is noteworthy that the Tribunal accepted the Applicant's claims. This is made quite clear at page 105 of the Court Book where the Tribunal said:
So, although the applicant's credibility came under scrutiny at the hearing, the Tribunal accepts his claims.[1]
[1] Court Book at page 105.
The Tribunal's decision is based not on the fact that it did not accept his claims, but that whilst accepting its claims, it came to the conclusion that it was reasonable for him to relocate within India. The Tribunal at page 105 refers to the decision of Randhawa v Minister for Immigration Local Government & Ethnic Affairs[2] where the Tribunal found that:
Even if an applicant has a well-founded fear of persecution in their home region, the Refugees Convention does not provide protection if the person could nevertheless avail himself of the real protection of his country of nationality elsewhere in that country.
In my view, the Tribunal's understanding of the decision in Randhawa does not display any error.
[2] (1994) 52 FCR 437
Ground 2 – Failure to Carry Out Its Review Function
As to the claim that the Tribunal failed to carry out its review function by not considering that the Applicant had been under pressure from the RSS and his girlfriend's family and did not consider his claim that the RSS members would kill him if he returned to India, I am satisfied that the Tribunal did consider those claims.
It should be emphasised that the Tribunal considered the Applicant's claims but considered that he could safely relocate to another part of India; in this case, Kerala.
Ground 3 – Failure to Investigate Claims
The Applicant claimed that the Tribunal denied him procedural fairness or failed to exercise its jurisdiction by failing to investigate his claims. There is no obligation on the Tribunal to carry out independent investigation. It has the power to seek further information under s.424 of the Migration Act. Indeed, the Tribunal did do so in this case by writing two letters to the Applicant seeking further information. The Applicant provided that information and I am satisfied that the Tribunal considered it.
There was no obligation for the Tribunal to make other inquiries and as counsel for the Minister, Ms Mitchelmore, has pointed out in her submission, the Tribunal does not have a general duty of inquiry. (See Prasad v Minister for Immigration & Ethnic Affairs[3]).
[3] (1985) 6 FCR 155
Ground 4 – Misuse of Country Information
The fourth ground is that the Tribunal in some way misused the Independent Country Information. I am not satisfied that that claim can be made out. The Tribunal produced a considerable amount of country information ranging over a number of subjects that were relevant to the Applicant's claim that he was, as a Muslim, subject to persecution from extremist Hindus because he wished to marry a Hindu woman.
The Tribunal considered that and used Independent Country Information to help it arrive at its conclusion that he could relocate to another part of India.
Ground 5 – Ignoring Relevant Considerations and Erroneous Findings
As to the Applicant's claim that the Tribunal emphasised irrelevant questions and ignored his background; this claim was not particularised and is, in any event, a challenge to the Tribunal's factual findings.
Ground 6 – Application of the ‘Wrong Test’
The final grounds is that the Tribunal applied the wrong test by leaving out individual elements of his claims or requiring independent evidence and setting too high a standard. The fact is that the Applicant's claims were accepted by the Tribunal. True, the Tribunal expressed some doubts but its entire decision is based on the fact that it accepted the Applicant's claims of a fear of persecution in his home region of India but was satisfied that he could safely relocate to another region in India and it was reasonable for him to do so.
In oral submissions to the Tribunal, the Applicant has taken issue with that finding. It is a claim by the Applicant which really goes to the Tribunal's factual finding. The Applicant claims that the Tribunal made an error in finding that he could relocate to Kerala because as he said: “no-one in Kerala speaks Tamil”.
Conclusions
The Tribunal relied on Independent Country Information which showed that 2.3 per cent of the population of Kerala spoke Tamil. True it is that this is not a high percentage. True it is that only relatively few people in Kerala speak Tamil as opposed to 86.7 per cent of the population in his home state of Tamil Nadu. Nevertheless, there is evidence that Tamil is spoken at least by some people in Kerala and the Tribunal was at liberty to rely on the Independent Country Information to find that it would be reasonable for the Applicant to locate there.
I note that the Independent Country Information also says that only 1.1 per cent of the population in Andhra Pradesh speak Tamil and the question could be raised as to the reasonableness of relocating there; but the Tribunal did not find that. The Tribunal's decision related to the state of Kerala.
The Applicant took issue with the Tribunal's finding that there was no real chance that the RSS would be likely to trace him and harm him if he were to relocate to Kerala. That is a factual finding and I am satisfied that there was Independent Country Information upon which the Tribunal was entitled to rely.
In my view, I am satisfied that the Tribunal did consider the Applicant's claim and was satisfied that notwithstanding that he did fear harm if he returned to his home region, that it would be reasonable for him to relocate to another part of India and find safety there.
In my view, no jurisdictional error has been demonstrated and the Tribunal decision is therefore a privative clause decision as defined by s.474 of the Migration Act. Because it is a privative clause decision it is not open to the Court to make orders in the nature of certiorari quashing the Tribunal decision. It follows that the application must be dismissed.
There is an application for costs on behalf of the Respondent Minister. This is an appropriate matter for an order for costs as the Applicant has been unsuccessful in his claim. The amount sought is $3,500.00 which is well within the scale provided by the Federal Magistrates Court Rules. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 13 February 2008
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