SZMYN v Minister for Immigration
[2009] FMCA 327
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 327 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – political opinion – citizen of India claiming fear of persecution because of involvement with Communist Party – relocation – whether Tribunal addressed all the applicant’s claims – serious harm – independent country information – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.430 – use of independent country information – whether apprehended bias – no jurisdictional error. |
| Judiciary Act 1903 (Cth) s.44 Migration Act 1958 (Cth), ss.36, 91R, 430, 474, 476 |
| SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 followed. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 followed. Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 |
| Applicant: | SZMYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3062 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 February 2009 |
| Date of Last Submission: | 2 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondents: | Ms Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $4,100.00.
I allow four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3062 of 2008
| SZMYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of India who is applying for review of a decision of the Refugee Review Tribunal that was signed on the
8th October 2008 and handed down on the 30th October. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the applicant a Protection (Class XA) visa.In his amended application, which he filed on 16th January 2009, the applicant seeks these orders:
1. An order or declaration that the notification by the delegate and the Tribunal to refuse to grant a protection visa invalid and has no effect to section 44c the Judiciary Act 1903 (cth).
2. A writ of certiorari quashing the decision of the Refugee Review Tribunal.
3. An order that no action is taken to remove the applicant from Australia while the decision is pending.
The Court has no power to make that part of order 1 that is sought relating to the decision of the delegate, as that is a primary decision and the Federal Magistrates Court has no jurisdiction in relation to a primary decision (Migration Act 1958 s.476(2)(a)).
The reference to “section 44c” of the Judiciary Act 1903 is clearly incorrect, as there is no section 44c. Section 44 relates to remittal of matters by the High Court to other courts.
The applicant relies on two grounds of review, which, summarised, are:
(1)The Tribunal failed to consider properly the test as to whether the applicant would suffer serious harm under s.91R(2)(a) of the Migration Act; and
(2)The Tribunal failed to consider the country information in the proper way.
Background
The applicant arrived in Australia on 10th April 2008. On 23rd May 2008 he applied for a protection visa. In a typed statement provided with his application, the applicant claimed that he came from Kerala in India and belonged to a Christian Other Backward Community in Kerala.
He claimed to have become a member of the Communist Party of India (CPI) (M)) in 1990. On two occasions, in 1993 and 1998, he left Kerala for his own safety because of harassment and threats by supporters of the All India Congress Party. In 1998 he went to the United Arab Emirates and worked there until 2007, returning to India from time to time.
He returned to India permanently in 2007 and in January 2008 he was pressured by members of the CPI (M) to work for them. When the applicant refused to do so, he claimed that they assaulted him, severely injuring his leg.
He obtained a visa to enter Australia in February 2008 and left India for Australia in April 2008, after he had received his passport and ticket.
The applicant attended an interview with a delegate of the Minister on 20th June 2008. The following day the delegate refused the application for a protection visa.
The delegate was not convinced that the applicant had established any of the key points of his claims. The delegate went on to find:
Even if I accept that the applicant was harassed by the members of the CPI (M) in Kerala, I find that he may relocate to other places in India. Having worked overseas for a long period of time indicates that he has the skills to work and settle in other parts of India.[1]
[1] Court Book 43
The applicant applied to the Refugee Review Tribunal on 9th July 2008 for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Tribunal wrote to the applicant on 7th August 2008, inviting him to attend a hearing on 10th September 2008. The applicant attended the hearing and gave evidence with the assistance of a Malayalam interpreter. He produced his Indian passport to the Tribunal.[2]
[2] Court Book 60 - 77
The Tribunal handed down its decision on 30th October 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record[3] the Tribunal set out the applicant’s claims and evidence, including:
(a)the applicant’s written statement accompanying his application for a visa; and
(b)a detailed summary of the applicant’s evidence to the Tribunal hearing.
[3] which can be found in the Court Book at pages 83 to 94
The Tribunal also referred to independent from the United States Department of State and the Voice of America News about India generally and religious violence in certain states of India. The Tribunal noted that the applicant had not suffered from violence based on religion:
It appeared the applicant had not experienced religious violence in the past. He explained that nothing had happened to him in the past because of religion, it was political problems that were haunting him.[4]
The Tribunal’s Findings and Reasons
[4] Court Book 91
The Tribunal found that the applicant was a national of India, noting that he had travelled to Australia on an Indian passport and had exhibited knowledge of India that was consistent with his claim.
However, the Tribunal took the view that the applicant’s claimed fear of harm was not well-founded because it did not extend to India as a whole and he was reasonably able to access effective protection (presumably meaning State protection) from that harm within India.
The Tribunal found that it was not implausible that individuals connected with the CPI (M) may seek to pressure him to become involved with the party if he should return to that area and that this pressure could include threats of violence against him. However, the Tribunal found that the threat extended only to a very small geographic part of India.
The Tribunal noted, however, that in the past the applicant was able to obtain safety by leaving the area and noted that he had been able to move to Mumbai and live and work there for an extended period. It also found that the CPI (M) only had significant political power and supporters in three states of India.
The Tribunal rejected the applicant’s claim that he would not be able to obtain employment sufficient to support himself and his family anywhere else in India, noting his work history within India and in the Gulf.
The Tribunal also did not accept the applicant’s claim that he would not be able to support his wife and child elsewhere in India, again noting his work history and finding that he had the resources and skills to be able to establish a suitable life for himself away from the part of India where he had previously lived.
The Tribunal found:
In the Tribunal’s view, the applicant can avoid the localised fear of harm he holds by relocating within India and that in doing so the chance of him coming to harm from members of the CPI (M) would be extremely remote. Neither would his relocation within India limit any relevant rights of the applicant, as it is his desire not to involve himself in politics which he wishes to exercise and would be able to do so elsewhere in India.[5]
[5] Court Book 93
The Tribunal also considered whether the applicant was at risk of harm from religious violence directed against Christians but found that:
i)The violence was limited to three specific areas;
ii)The applicant had not experienced any such harm in the past;
iii)His oral evidence was that he did not have a subjective fear on this basis; and
iv)He was not at risk of any harm arising from generalised internal conflicts.
Accordingly, the Tribunal expressed the view that it did not believe the applicant held a well-founded fear of being harmed for reasons of religion should he return to India.
The Tribunal found that the applicant did not hold a well-founded fear of being harmed for any reason in the Refugees Convention if he should return to India and, as a result, was not a person to whom Australia has protection obligations and therefore did not satisfy the essential criterion for any Class XA visa under s.36 of the Migration Act. The Tribunal then affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 24th November 2008. He filed an amended application on 16th January 2009 and it is on this document that he relied at the hearing.
The applicant relied on these two grounds of review:
(1)The Tribunal failed to consider properly the test whether the applicant would suffer harm as per sec 91R (2) (a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal(‘s) failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal:
(a)The Tribunal not considered that the applicant is belong to a Christian minority who had been under immense and intimidating pressure from the CPI (M).
(b)The Tribunal made no finding as to the extent or nature of the persecution suffered by the applicant.
(c)The Tribunal however found that any persecution suffered was not for any convention reason but did not give reasons for the finding.
(d)The Tribunal failed to record the material facts for the reasons referred to above.
(e)The Tribunal did not make any finding, it was reasonable for the applicant to fear such problems in the future should he return to India.
(2)The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was pre occupied and did not have fresh look. The Tribunal failed to consider the country information in a proper way.
The applicant did not file any written outline of submissions. He attended Court and made a submission with the assistance of an interpreter in the Malayalam language.
The applicant told the Court that he was an ordinary man, a poor man. By chance he happened to be a member of the political party referred to. Eventually he had to leave the country.
He submitted that even if he relocated elsewhere in India that sort of problem (i.e. harassment and violence) might follow him, because the (Communist) party has a network. Even though the Government of India has set up a system for protection of people like him, that so-called protection from the Government is nominal or only in the Constitution. On the practical side there is no protection.
Ms Nanson, solicitor, appearing for the first respondent Minister, submitted that the applicant’s submission was, in essence, a request to the Court to review the evidence a reach a different conclusion on the facts.
It was also submitted for the Minister that the Tribunal was aware of all the applicant’s claims and addressed them. It found that the harm feared from individuals connected with the CPI (M) was localised.
The Tribunal had considered whether the applicant was at risk of harm arising from his Christianity and found that he had neither experienced any harm of that nature in the past nor did his evidence show a subjective fear of any harm on that basis on return to India. The Tribunal did not accept that the applicant was at risk of harm form generalised internal conflicts.
The Tribunal considered that the applicant could effectively relocate within India. It correctly considered the question of relocation in accordance with the decision in SZATV v Minister for Immigration and Citizenship[6] at [23] and [24].
[6] (2007) 237 ALR 634
The Tribunal had also found that the applicant could access effective State protection.
The Tribunal complied with its obligations under s.430 of the Migration Act in preparing a written statement setting out its findings on material questions of fact, its decision and the reasons for that decision.
As to the applicant’s second ground, it is submitted on behalf of the Minister that it is without merit, as the Tribunal’s use of independent country information is a matter for the Tribunal alone, as is the weight it attaches to that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[7]).
[7] [2004] FCAFC 10
To the extent that the ground alleges apprehended bias, the Minister submits that it is unparticularised except for the assertion that the Tribunal considered the country information in an improper way. As such it cannot be sustained.
Conclusions
This is a case where the Tribunal accepted that the applicant may have a well-founded fear of persecution for the Convention reason of political opinion in his local area in Kerala. The reasons why it found that the applicant did not have a well-founded fear of persecution for a Convention reason sufficient to enliven Australia’s protection obligations under s.36(2) of the Act was because it was reasonable for him to relocate to another part of India to escape the harm and, to a lesser extent, because the Tribunal found that he could obtain effective state protection within India.
The Tribunal considered the authorities relating to relocation in its decision, namely Randhawa v Minister for Immigration, LocalGovernment and Ethnic Affairs[8] at 440-441; SZATV v Minister forImmigration and Citizenship[9] and SZFDV v Minister for Immigrationand Citizenship[10]in paragraph 17 of its decision.[11] The Tribunal’s understanding of the principles to be followed is demonstrated in its statement:
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country…Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of “practicable’, to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact of that person of relocation within his or her country.[12]
[8] (1994) 52 FCR 437
[9] [2007] HCA 40
[10] [2007] HCA 41
[11] Court Book 85-86
[12] Ibid
The Tribunal’s understanding of the relocation principles is without error.
The Tribunal considered the particular circumstances of the applicant, noting that he had previously successfully relocated both out of India, to the UAE, and within India, to Mumbai, to avoid persecution for political reasons. It noted the applicant’s significant work history and took the view that it was reasonable to expect that the applicant could:
(a)obtain appropriate employment elsewhere in India; and
(b)provide suitable accommodation and resources for his wife and child elsewhere in India.
The Tribunal did not fall into error when it made its findings about relocation.
The Tribunal not only considered the question of harm for political reasons, which it found was a localised fear, but it also considered whether the applicant could have a well-founded fear of persecution for other Convention reasons, and it explored with the applicant the possibility of harm for reasons of religion, noting that he was a Christian. After an examination of the evidence from the applicant, it satisfied itself that the applicant did not hold a well-founded fear for reasons of religion.
No error is shown in this finding.
The applicant’s ground 1 also claims that the Tribunal did not make findings or record material facts for its reasons in what appears to be a claim that the Tribunal did not comply with the requirements of s.430 of the Migration Act.
Subsection 430(1) of the Migration Act provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
The difficulties for the applicant in this ground, if it is a ground, are, first, the Tribunal plainly did comply with requirements of s.430(1) in its Decision Record, and, second, even if it did not, it has been held that a failure to comply with s.430(1) is not jurisdictional (see Minister for Immigration & Multicultural Affairs v SBAA[13] at [38], also Minister for Immigration & Multicultural Affairs v Yusuf[14]).
[13] [2002] FCAFC 195
[14] (2001) 206 CLR 323; 180 ALR 1
The Tribunal did not fall into error in failing to comply with s.430 of the Act. The Tribunal did not fail to consider whether the applicant would suffer serious harm under s.91R (2). The applicant’s ground 1 fails.
Turning to the applicant’s second ground, the amended application complains about the Tribunal’s use of country information as weighing against the applicant’s case in the final outcome and also complains that the Tribunal failed to consider the country information in a proper way.
The use of country information and the weight that it gives to that information is entirely a matter for the Tribunal. The Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[15] at [11]:
There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function…The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.
[15] [2004] FCAFC 10
Similarly, in SZANK v Minister for Immigration & Multicultural & Indigenous Affairs[16], Hely J, applying NAHI, held that it was a matter for the RRT to decide what weight should be given to country information as part of its fact finding function, saying at [16]:
The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
[16] [2004] FCA 1478
There is no error displayed in the Tribunal’s use of independent country information.
The Minister’s lawyers have also considered whether the applicant’s ground 2 raises the issue of apprehended bias on the part of the Tribunal. These statements may possibly give rise to such a view, although the applicant did not mention this issue in his oral submission at the hearing:
The Tribunal was pre occupied and did not have a fresh look. The Tribunal failed to consider the country information in proper way.
Apprehended bias, like any allegation of bias, must be strictly alleged and strictly proved. There is nothing alleged which would lead a fair-minded lay observer who was properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal to a reasonable apprehension that the Tribunal might not bring an impartial mind to the resolution of the question to be decided (see Re Refugee Review Tribunal; ex parte H[17]at [27]-[28]).
[17] (2001) 179 ALR 425
There is no evidence of apprehended bias. The applicant’s ground 2 has not been made out. I am satisfied that the Tribunal decision does not display any jurisdictional error, whether referred to by the applicant or by the lawyers for the Minister, or in my own reading of the tribunal decision.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and not, therefore, subject to prohibition, mandamus, injunction, declaration or certiorari in any Court (Migration Act, s.474).
It follows that the application will be dismissed. I will hear submissions as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 15 April 2009