SZMXC v Minister for Immigration
[2009] FMCA 1057
•6 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1057 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – practicability of relocation considered – Tribunal’s failure to make inquiries considered. |
| Migration Act 1958, ss.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | SZMXC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1262 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 October 2009 |
| Date of Last Submission: | 6 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1262 of 2009
| SZMXC |
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 worked as an administrator at a Hindu temple in Gujarat. He claims that during the 2007 elections in Gujarat the temple openly supported the Congress Party. He claims that when the BJP won the election, he was targeted and attacked by BJP members who believed him to be a supporter of the Congress Party.
The applicant claims to fear persecution in India from local BJP supporters because of his political profile and his association with the temple in question.
After his arrival in Australia on 12 March 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 30 June 2008. 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.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 30 September 2008 which was quashed by consent on 6 February 2009.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 104 – 111).
The applicant made the following claims in his protection visa application:
a)he worked as a kothari, an administrator and supervisor, at a Hindu temple in Gujarat where his father had also previously served. The temple welcomed all people, including the poor and the untouchables, and performed birth ceremonies, marriages, funerals and other functions;
b)during the 2007 elections in Gujarat the applicant’s temple openly supported the candidate for the Congress Party. The applicant himself instructed devotees of the temple to vote for the Congress Party but the BJP candidate won the election. Thereafter, BJP members openly threatened to kill the applicant;
c)in January 2008 the applicant was attacked while on his way home. He was beaten and verbally abused. He lost consciousness but was later found by his family who took him home. He stayed there, scared, for ten days;
d)one of his attackers, whom he recognised, was a worker at the Swaminarayan temple nearby. The devotees of this temple were rich and arrogant and objected to the practice of allowing untouchables into Hindu temples. The Swaminarayan temple also opposed the applicant’s temple because it had supported the Congress Party candidate; and
e)after the attack on him, the applicant sent his wife to her parents’ home and he went to Mumbai where he organised his travel to Australia. He fears that he will be killed if he returns to India.
The applicant made the following additional claims at a hearing before the Tribunal as first constituted:
a)the local BJP representative who won the 2007 election in Gujarat often attacked him because his temple attracted people who supported the Congress Party. The temple’s devotees were poor and were drawn to the Congress’s local candidate because of his support for minorities and the poor;
b)the applicant himself did not promote any political party. Rather, he listened to and supported the temple visitors, including their political discussions, and responded to their existing interest in the Congress Party;
c)the local Congress Party candidate visited the temple once and on that occasion the applicant and others declared their support for him;
d)he was attacked on 18 January 2008, some weeks after the Gujarat Assembly elections. He suffered injuries and spent ten days in hospital. When he reported the incident to the local police they refused to accept his complaint. Instead, they “tortured” him, threatened to lay false charges if he did not disappear and threatened to kill him if acted against the BJP;
e)people continued to target and harm him so he went to his uncle’s house in Balua. However, the BJP activists targeted him there too;
f)he then went and stayed with another uncle in Mumbai. However, after his arrival, his uncle received telephone calls from people who threatened to come and kill the applicant. His uncle decided to put the applicant up in paid accommodation for his safety;
g)his uncle then made arrangements for him to travel to Australia. He did not go to Malaysia or Singapore, for which he had visas, because he did not have sufficient English and because his uncle did not know whether there were Indians in Malaysia or Singapore; and
h)BJP activists could find and kill him anywhere, for instance, Mumbai had proved to be “not peaceful”. He was driven to help the poor and disadvantaged and would, if he returned to India, go back to the temple where he would face the same dangers from the BJP.
The applicant essentially repeated these claims at a hearing before the Tribunal as constituted on the second occasion. In particular, he reiterated that the BJP would pursue and find 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 accepted that the applicant was targeted and attacked by the BJP following the 2007 election in Gujarat because of his association with a temple which supported the Congress Party. The Tribunal also accepted that he was denied adequate protection by the local police when he sought their assistance;
b)the Tribunal accepted that political differences could result in further difficulties for the applicant with the BJP were he to return to his home town in Gujarat. It accepted that the local police in that area might not be able or willing to protect him. However, the Tribunal was not satisfied that the applicant was of ongoing adverse interest to the BJP throughout India as claimed, that he would be pursued and harmed by the BJP throughout India or that the authorities in India would not protect him from the BJP. The Tribunal noted that there was no compelling evidence to support the applicant’s claims in this regard and found that he had greatly exaggerated the risks he faced in order to enhance his claim for protection;
c)the Tribunal found that the applicant’s difficulties in India were confined to his home town in Gujarat and was satisfied that he could avoid further difficulties with the persons he feared by relocating within India;
d)the Tribunal was satisfied that relocation for the applicant was a reasonable option and, in this connection, noted that he had been able to flee to Mumbai previously and, additionally,
e)having considered the human rights conditions in India, the Tribunal was satisfied that notwithstanding the local difficulties he had encountered, the applicant would have access to a reasonable standard of state protection consistent with international standards should he require protection by the Indian authorities from the BJP or anyone else in the reasonably foreseeable future.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
(2)The Tribunal member emphasised on some irrelevant question at oral evidence and ignored my political opinion against BJP that put my life in risk. In doing so the Tribunal be said to have ignored relevant material, relied in part on irrelevant material and/or made findings which were erroneous or mistaken.
(3) The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequences of the claim.
(4)The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
(5)The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 30 April 2009 was effected by actual bias constituting judicial error.
At the hearing today the applicant also submitted that the Tribunal ignored his claims and his evidence.
Reasonable satisfaction
The first allegation made in the application was not particularised so it is unclear to what satisfaction the applicant is referring. However, as the Tribunal’s decision was ultimately based on its conclusion that the applicant could safely relocate within India, presumably this ground intends to refer to the Tribunal’s decision on that question. In this regard, it should be noted that the Tribunal expressed its conclusions on the various aspects of the question of whether the applicant might reasonably be expected to relocate within India in terms of its satisfaction on those various points. However, these statements by the Tribunal should be understood to have been findings of fact on each of those aspects of the relocation issue.
Consequently, the Tribunal’s expressed satisfaction should be seen not in the sense that that word was considered in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 or Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, but as a number of simple factual findings. Whether any of those findings could form the basis for a conclusion that the Tribunal’s decision was affected by jurisdictional error depends on whether there was or was not evidence to support such findings. In this case, I conclude that the Tribunal’s factual findings, expressed in paras.42, 44 and 45 of its decision record, were open to it on the evidence and do not point to jurisdictional error on its part.
However, before passing from the question of relocation and the Tribunal’s findings on it, some separate attention needs to be given to the Tribunal’s finding at para.42 of its decision that it would be reasonable for the applicant to relocate. In SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 it was held:
The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. …
However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. (per Gummow, Hayne and Crennan JJ at 26-27 [23]-[24])
It is not immediately apparent from the way it expressed itself that the Tribunal considered whether relocation was practicable for the applicant as distinct from an option which, if taken, would allow him to live free of the well-founded fear of persecution for a Convention reason. In this connection, the comments of the Full Court of the Federal Court in SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 are particularly relevant:
The test for relocation is whether it is practicable in the particular circumstances of the particular applicant … The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C-D. (at [124])
The Tribunal’s comments in the first two sentences at para.42 of its decision are also particularly relevant to this question:
The Tribunal has formed the view that the applicant’s difficulties in India are confined to the area where he previously lived and he can avoid those difficulties by living elsewhere. The Tribunal attempted to discuss this option with the applicant but he was unwilling to consider it.
A review of the Tribunal’s summary of that part of its hearing which dealt with the question of relocation discloses that the Tribunal raised the possibility of relocation with the applicant. It also demonstrates that the applicant made no objection to relocation except in terms of the stated fear that his enemies would find him wherever he went in India, a claim which was rejected by the Tribunal.
In those circumstances, I conclude that the Tribunal adequately addressed the matters which it had to consider when determining whether it was reasonable to expect the applicant to relocate within India and whether he might avoid any persecution he fears by moving to live somewhere else in his country of nationality.
For these reasons, I find that the first ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal ignored relevant material and relied on irrelevant material and arrived at erroneous conclusions
The second ground pleaded in the application is unparticularised, apart from a reference to the Tribunal having ignored the applicant’s “political opinion against BJP”. Dealing first with the applicant’s political views, the Tribunal’s decision record discloses an attentive consideration of the applicant’s political stance in India and how this was related to his work in the temple together with the relevance of these matters to his claim to fear persecution in India. On the facts, this aspect of the allegation that the Tribunal ignored relevant material is not made out.
As to the remainder of the allegation, what the applicant must demonstrate is that the Tribunal ignored relevant material while relying on irrelevant material in such a way that its exercise of power was affected. It has not been demonstrated that when addressing itself to the various questions and tests which it was required to consider, the Tribunal acted in the way alleged by the applicant. In these circumstances, should the Tribunal have reached factual conclusions which were incorrect, they would not be conclusions which were the products of legal error by reason of a proven failure to consider relevant material or a proven consideration of irrelevant material.
For these reasons, the second ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal’s decision unjust and failed to consider the consequences to the applicant
The first part of the third allegation pleaded in the application is no more than a complaint about the Tribunal’s finding on the merits of the applicant’s claim. In judicial review proceedings such as these, the Court cannot review the merits of a visa application or the merits of a review brought to the Tribunal. Its role is to determine whether or not the Tribunal’s decision was reached as a result of the proper implementation of procedural rules and whether or not the Tribunal’s ultimate decision was reached through a proper application of the law. As long as the Tribunal followed proper procedures and properly applied the law in reaching its decision, findings on the merits of an application are matters entirely reposed in it and are not subject to review by the Court.
As to the “gravity of applicants [sic] circumstances and the consequences of the claim”, these were not, in terms, the matters which the Tribunal was required to consider. What it was required to determine was whether the applicant met the criteria for a protection visa – whether he has a well-founded fear of persecution for a Convention reason, as those terms are read and understood through the prism of the Act. It did this. It was not required to consider the applicant’s application according to the test articulated in the fourth ground pleaded in the application. As a result, that ground discloses no jurisdictional error on the Tribunal’s part.
Failure to consider Convention tests
The fourth allegation in the application is to the effect that the Tribunal failed to turn its mind to “the four key elements of the Convention definition” and committed factual and legal error as a result. As the application itself discloses, the Tribunal did consider the relevant tests and summarised, without error, the relevant law at paras.9-18 of its decision. Indeed, the Tribunal accepted that the applicant had a fear of persecution in his home town by reason of the actions of the BJP and the failure of local authorities to provide him with adequate protection. However, the Tribunal went on to consider the Convention tests for a second time in the context of the relocation issue, although that consideration was largely abbreviated because the Tribunal disbelieved the applicant’s claims that he would be pursued throughout India by the BJP.
Moreover, even if the Tribunal had failed to consider the necessary Convention tests and had accepted the applicant’s claim or allegation that the BJP would pursue him throughout India, the Tribunal concluded that, generally, state protection of a reasonable standard was available to him.
For all these reasons, the fourth ground does not support a conclusion that the Tribunal erred.
Bias
The fifth ground pleaded in the application is to the effect that the Tribunal’s decision is affected by bias and that this is demonstrated by its failure to undertake inquiries into the applicant’s claim. The Tribunal has no general duty to make inquiries, but the failure to pursue an obvious line of inquiry might point to jurisdictional error. As the High Court said in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (at 436 [25]).
It may therefore be that failure to inquire may demonstrate a closed mind and bias of the sort considered in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. However, this allegation was not particularised except in the most general of terms. Nor has the applicant indicated what inquiry the Tribunal should have made or why the Tribunal should have made it. Nothing in the evidence before the Court suggests that the Tribunal had a mind so committed to a conclusion already formed that it was incapable of alteration, regardless of whatever evidence or arguments might have been put to it. In particular, there is nothing in the evidence before the Court to suggest that such a frame of mind led to the Tribunal failing to make inquiries which it should have made.
Accordingly, I find that the fifth ground plead pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal ignored applicant’s claims and evidence
In his submissions today the applicant said that the Tribunal ignored whatever material he gave it and it made its own decision. When the applicant was asked whether the Tribunal had ignored everything which he had put before it, he replied that he did not know what the Tribunal had accepted and what it had not accepted.
The allegation made today by the applicant is not borne out by a consideration of the Tribunal’s decision record. In particular, it should be noted that the Tribunal did accept the applicant’s claims concerning the harm he had suffered in the past in his home town in Gujarat. The fact that the Tribunal did not believe the applicant’s claim that the BJP would follow him throughout India does not demonstrate that the Tribunal ignored evidence and arguments placed before it by the applicant. Rather, that conclusion was the product of a rational reasoning process based on the totality of the evidence before the Tribunal. Certainly the Tribunal had regard to the applicant’s allegations, but did not accept them as far as they related to fear beyond his local area and whether that alleged fear was well-founded.
It may be that the submissions today also implied bias on the Tribunal’s part and that the Tribunal reached a decision having a closed mind in respect of the applicant’s evidence and submissions. The Tribunal’s decision record does not bear out such an implication. It is apparent that the Tribunal conducted a thorough and conscientious review and, as has already been noted, took account of the applicant’s claims, evidence and submissions.
For these reasons, the matters raised by the applicant in his oral submissions today do not demonstrate jurisdictional error on the Tribunal’s part.
Conclusion
The allegations and arguments raised by the applicant in these proceedings have not demonstrated that the Tribunal’s decision is affected by jurisdictional error and, as a consequence, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 November 2009
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