SZLNO v Minister for Immigration
[2008] FMCA 968
•3 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 968 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 ss.91R, 422B, 424A, 425, 429A |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZLNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3273 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 3 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3273 of 2007
| SZLNO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 27 September 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of India who arrived in Australia in April 2007 and applied for a protection visa.
In his original application it was stated that details would be provided later in relation to his claim to be a refugee. The application was accompanied by a statement from a migration agent that 22 clients had approached him and said they did not want to go back to India, claiming they did not have civil and political freedom and suffered from poverty and starvation as farmers from Rajasthan. The application was refused by a delegate of the first respondent who addressed the applicant's claims as put by the migration agent. The applicant sought review by the Tribunal.
It is apparent from the material before the Court that no further written information was provided by the applicant to the Tribunal. However he attended a Tribunal hearing, which I note from the Tribunal hearing record occupied an hour of time. The Tribunal hearing was conducted by way of a video link.
In its reasons for decision the Tribunal set out the applicant's claims. It summarised what occurred at the hearing, noting that it had been assisted by an interpreter in the Hindi language as, notwithstanding that the applicant had requested an interpreter in Punjabi in his application for review, at the start of the hearing he had indicated that he would prefer Hindi. The Tribunal had been able to provide him with a Hindi interpreter.
The Tribunal recorded the applicant's evidence at the Tribunal hearing as to how he had come to Australia and that he feared if he returned to India the Rajputs would kill him. He claimed that he had a marble business that the Rajputs wanted him to sell to them, but that he had refused and that they had killed his business partner in July 2006. He claimed that he had lived in hiding. The Tribunal put to the applicant the inconsistencies between this claim and his earlier oral evidence that he had lived in his village before leaving India. It recorded his response that he had been living sometimes in the village and sometimes outside, moving around for protection.
The Tribunal recorded that the applicant confirmed that the only reason he feared the Rajputs was because he had refused to sell them the marble business and that he did not fear anyone apart from the Rajputs.
The Tribunal raised with the applicant the fact that in the statement accompanying his original application it had been claimed that as a farmer from Rajasthan he feared problems, including poverty and starvation. The applicant said that this was not correct.
The Tribunal also put to him the original claim that he did not have civil and political freedom in India. He agreed, stating that he was a member of the Congress Party, that the BJP was in power in Rajasthan, and that hence he had no personal freedom and was not at liberty to go where he wanted.
The Tribunal discussed independent country information with the applicant in relation to the situation in India and recorded his response. It also put to him that although the BJP Party was in power in Rajasthan, the Congress Party of which he claimed to be a member was in power at the national level. It recorded the applicant's responses in relation to this information.
The Tribunal noted that it put to the applicant that his fear of the Rajputs did not appear to have the necessary connection with one of the reasons in the Refugees Convention and the applicant indicated that he understood.
In its findings and reasons the Tribunal addressed each of the possible bases for the applicant's claim to refugee status. It considered his claim at the hearing that if he returned to India he feared the Rajputs would kill him because he had refused to sell his marble business, that they had killed his business partner and that he had been living in hiding, sometimes in his village and sometimes elsewhere. However, the Tribunal did not accept on the evidence before it that one or more of the Convention reasons was the essential and significant reason for the persecution the applicant feared from the Rajputs within s.91R(1)(a) of the Migration Act 1958 (Cth).
Notwithstanding this the Tribunal went on to ask whether the relevant Convention nexus could be found in the failure of the Indian authorities to protect the applicant from persecution by the Rajputs, observing that what is required is State toleration or condemnation of the persecution in question and systematic discriminatory implementation of the law.
In that context the Tribunal considered the applicant's claim that he was a member of the Congress Party, that the BJP was in power in Rajasthan and that this was why his partner had not been able to get any help and had been killed. However the Tribunal found that if the applicant feared for his safety in Rajasthan where the BJP was in power, he could have moved elsewhere in India, noting that the Congress Party was in power at the national level.
The Tribunal found that it would be reasonable in the applicant's particular circumstances for him to have relocated to a State in India where the Congress Party was in power. It noted that this would not have involved any abandonment of his involvement in politics. It addressed his evidence in relation to whether he could relocate, in particular his acknowledgment that he could have gone to another State and that he had been prepared to come to Australia. The Tribunal found that since the only reason the applicant gave for his inability to access effective State protection in Rajasthan was that the BJP was in power in that State, it did not accept that he would not be able to access effective protection in another State in India where his own party, the Congress Party, was in power and where objectively there would be no appreciable risk of the occurrence of the persecution which he claimed to fear in Rajasthan.
The Tribunal also addressed the applicant's claim that he did not have civil and political freedom in India. Having regard to independent evidence, which it discussed, it did not accept that there was a real chance the applicant would be denied or prevented from exercising his civil and political rights in such a way or to such an extent as to amount to persecution involving serious harm if he were to return to India now or in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to India now or in the reasonably foreseeable future.
The applicant sought review by application filed in this Court on 22 October 2007. That application contains two generally expressed and unparticularised grounds. They are that the applicant is not satisfied with the Tribunal decision and that the Tribunal made a wrong decision.
In the affidavit accompanying his application for review the applicant claimed that he had been denied natural justice, that he was not represented by a migration agent and that the Tribunal made the decision “without considering my genuine claim”.
Considering first the grounds in the application, the generally expressed dissatisfaction with the Tribunal decision seeks merits review which is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272.
To the extent that the applicant takes issue with the adverse findings of the Tribunal, that of itself does not establish jurisdictional error. Nor does the general contention that the Tribunal made a wrong decision.
The applicant claims he was denied natural justice. First, the absence of a migration agent in connection with his application for review by the Tribunal is not such as to establish any jurisdictional error on the part of the Tribunal. There is nothing in the material before the Court to indicate any failure by the Tribunal to comply with its procedural obligations in Division 4 of Part 7 of the Migration Act 1958 (Cth). I note the operation of s.422B.
In relation to s.425 of the Act there is nothing to indicate that the Tribunal failed to invite the applicant to a hearing in accordance with its obligations under the Act. It conducted the hearing by way of video link, consistent with s.429A of the Migration Act which enables it to take evidence or allow the appearance by the applicant or the giving of evidence by the applicant by telephone, closed-circuit television or any other means of communication.
The Tribunal provided a Hindi interpreter as sought by the applicant, notwithstanding the change in that respect. The Tribunal reasons for decision indicate that the Tribunal raised with the applicant dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The Tribunal also put to the applicant independent country information. I note in that respect that such independent country information would be within the exception in s.424A(3)(a) in relation to any s.424A obligation. Moreover, the Tribunal based its decision on information that the applicant gave at the Tribunal hearing. Such information is within s.424A(3)(b) of the Act.
One issue is raised by the applicant at the hearing today was a claim that the Tribunal was in error because when he was talking he was stopped by the Tribunal member raising his hand. Despite being given the opportunity to elaborate on this concern the applicant did not do so. I note that he was given the opportunity at the directions hearing to file and serve any affidavit evidence including any transcript of the Tribunal hearing upon which he proposed to rely on or before 6 March 2008. He did not take that opportunity.
This claim is not such as to establish that there is any concern about the conduct of the Tribunal hearing such that despite the applicant’s non-compliance with the directions, he should be given an adjournment and a further opportunity to put evidence before the Court in support of such a generally expressed contention.
In that respect I note that the Tribunal reasons for decision record that a considerable amount of evidence was given by the applicant at the Tribunal hearing. The applicant has not disputed the Tribunal account of what he said in response to Tribunal questioning. The mere fact of the Tribunal member raising his hand to indicate that the applicant should pause in what he was saying or "stop talking" as the applicant put it, is not of itself such as to establish a jurisdictional error. In particular in circumstances where the hearing was conducted by video link it does not establish that the Tribunal had closed its mind or appeared to have done so, that it did not consider the applicant's claims or that it did not afford the applicant the opportunity required under s.425 of the Act.
In particular, insofar as the applicant now seeks to raise a suggestion of bias or apprehended bias that is not made out on the evidence before the Court. Bias is a serious allegation which must be clearly put and established. There is nothing in the material before the Court to support any contention of predetermination or that the Tribunal had closed its mind (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982) or that a perception of bias would be apparent from the perspective of the appropriately informed lay observer (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
On the contrary, the Tribunal considered not only the claims put by the applicant at the Tribunal hearing, but also raised with him and addressed the more generally expressed claims put in connection with the protection visa application. It gave him an opportunity to comment on its concerns in relation to the absence of the necessary Convention nexus and also other difficulties in relation to his claims. It discussed with him the possibility of relocation and obstacles to relocation which it subsequently considered in its reasons for decision. On the evidence before the Court neither actual nor apprehended bias nor any failure to comply with s.425 is established.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks costs in the sum of $2,300. The applicant told the Court that he has no money at present. However in the circumstances of this case the applicant’s impecuniosity is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
The amount sought is at the lower end of the scale of the sort of costs that are normally sought in matters of this nature. I consider it is an appropriate amount in light of the nature of this and other similar matters.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 22 July 2008
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