SZLPE v Minister for Immigration
[2008] FMCA 673
•22 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 673 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no denial of natural justice whether by lack of procedural fairness or by reason of bias. |
| Migration Act 1958, ss.422B, 424A, 425 |
| Applicant: | SZLPE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2312 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 May 2008 |
| Date of Last Submission: | 22 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 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 $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2312 of 2007
| SZLPE |
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 fears persecution from the BJP. He alleges that while in India he voted for the Congress Party and that this subsequently led to a death threat from a person claiming to be from the BJP. The applicant arrived in Australia on 20 April 2007.
The applicant claims to fear persecution in India because of his political opinion.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 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 – 8 of the Tribunal’s decision (Relevant Documents (“RD”) pages 90 – 94). 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 rights 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)an agent helped him to prepare his initial protection visa application but he does not know what the agent wrote;
b)he joined the sporting group so that he could come to Australia and played a little bit of the relevant sport;
c)he felt in danger from the BJP because they were in government in Rajastan and they had killed three members of the Congress Party;
d)the BJP knew that he had not voted for them. He initially stated that he was a member of the Congress Party. Later he said that he had never been a member but had voted for them;
e)the BJP threatened him once over the telephone when he was told that unless he joined the party they would kill him. Nothing else happened to him;
f)they threatened to kill his father who was an active member of the Congress Party. The applicant subsequently said that the BJP said that if his father did not join their party they would kill his son, i.e. the applicant;
g)he reported this threat to the police but they did not do anything; and
h)the person who threatened him was a very high profile political leader in the BJP but has not been caught. This person would follow him wherever he went in 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)the Tribunal did not accept that the applicant was telling the truth about the persecution he claimed to fear from the BJP, noting that:
i)he initially stated that he had been a member of the Congress Party and then later stated that he had merely voted for them; and
ii)he gave a number of different versions of the threat which he claimed the BJP had made against him, two out of three being to the effect that the threats had been made against his father, yet it was the applicant who left and the father who stayed; and
iii)he made no attempt to move somewhere else in India.
b)the Tribunal concluded that even if it were to accept that effective protection was not available in Rajasthan, it did not accept that the applicant would not be able to access effective protection in another state in India where his own party, the Congress Party, is in power;
c)the Tribunal found that it would be reasonable for the applicant to relocate to a state where the Congress Party is in power and that there would be no appreciable risk of the occurrence of the persecution which he claimed to fear in Rajasthan;
d)the Tribunal did not accept that there is a real chance that the applicant would be persecuted for reasons of:
i)his political opinion;
ii)his membership of the particular social group constituted by his family (based on his father’s support of, or involvement in, the Congress Party); or
iii)his membership of any particular social group such as farm workers or farmers in Rajasthan; and
e)the Tribunal did not accept that, were the applicant to return to India, he would be denied or prevented from exercising his civil or political rights in such a way as to amount to persecution.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1)The RRT denied proper application of law to the applicant.
2)The RRT denied natural justice to the applicant.
3)The RRT did not follow due procedure.
Dealing with each of these grounds in turn:
Applicant denied proper application of the law
The first asserted ground of review is not particularised and without particulars it has no real substance. The second and third grounds pleaded in the application raise questions of natural justice and procedural fairness which suggest, by exclusion, that this ground refers to the legal tests of what amounts to a well-founded fear of persecution for a Convention reason.
However, this is not a case where the application of any legal test relating to satisfaction of the criteria for the granting of a protection visa is relevant. This is a case which turned on the facts and the failure of the applicant to satisfy the Tribunal of the facts upon which he relied when seeking such a visa. This review by the Tribunal turned on its perception of the applicant’s credibility and the truthfulness of his evidence. It reached negative conclusions on both. Consequently, there was no issue of the proper application of the law in so far as the test for the grant of a protection visa is concerned and the first asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Applicant denied natural justice
The second ground pleaded in the application is also not particularised and the applicant has not made any submissions today which would clarify it. It is possible that when referring to denial of natural justice the applicant is referring to an allegation that the Tribunal’s procedure was unfair or to an allegation that the Tribunal was biased.
As to the question of procedural fairness, it should be noted that the natural justice hearing rule is codified in div.4 of pt.7 of the Migration Act 1958 (“Act”) by virtue of s.422B of that Act. The principal sections in that division are s.424A and s.425 and there has been no breach of either of those sections. A review of the Tribunal’s decision record discloses that its decision was based on the evidence which the applicant gave to the Tribunal and independent country information, with the consequence that the Tribunal had no obligation to serve a notice under s.424A(1).
It is also apparent that the applicant, having been invited to attend and having attended the Tribunal hearing, was notified of the issues relevant to the determination of the review because they were discussed in some detail at the hearing. Consequently, no breach of the Tribunal’s duties under s.425 is disclosed.
Nor is it apparent that there has been any breach of any of the other sections in div.4 of pt.7 and I note that no allegation has been made that there has been. I should also note that the allegation in the second asserted ground of review is not particularised such as to suggest that the applicant relies on any breach of such provisions.
As to the possible issue of bias raised by the second ground pleaded, it is possible that the applicant might be alleging either actual or apprehended bias on the part of the Tribunal. However, no evidence has been adduced by him which would support either of such allegations of bias were they actually being made in these proceedings. The only evidence before the Court relevant to such an issue is the Tribunal’s decision record. That decision record does not suggest that the Tribunal failed to approach its task conscientiously or with a mind which was not open to persuasion or such that a reasonable observer properly informed of the matters in issue might have drawn a conclusion that there was a real and not remote possibility that the Tribunal was not bringing an unprejudiced mind to the determination of the issues before it.
For these reasons, I conclude that the second asserted ground of review pleaded in the application is not made out.
Tribunal did not follow due procedure
The third pleaded ground is really no more than a re-articulation of the second ground of review to the extent that the second pleaded ground raises issues of procedural fairness. For the reasons already given on that aspect of the second pleaded ground, the third ground pleaded in the application is unsuccessful.
Conclusion
For these reasons I conclude that jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 June 2008
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