SZNDM v Minister for Immigration
[2009] FMCA 780
•29 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 780 |
| MIGRATION – Review of RRT decision – applicant a citizen of India – where Tribunal denied applicant extra time to obtain documents where those documents not relevant to a fact in issue – where Tribunal expressed doubt about an incident accepted by the delegate – whether Tribunal notified applicant that this was a fact in issue. |
| Migration Act 1958 (Cth), s.425 |
| SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| First Applicant: | SZNDM |
| Second Applicant: | SZNDN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 62 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 July 2009 |
| Date of Last Submission: | 29 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2009 |
REPRESENTATION
| For the Applicants: | In Person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 62 of 2009
| SZNDM |
First Applicant
| SZNDN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 2 June 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 3 July 2008. On 22 August 2008 a delegate of the Minister refused to grant a protection visa and on 10 September 2008 the substantive applicant, together with his wife, applied for a review of the delegate’s decision from the Refugee Review Tribunal. I shall refer to the substantive applicant as the “applicant”.
The applicant attended a hearing before the Tribunal, and on 18 December 2008 the Tribunal determined to affirm the decision not to grant a protection visa. The applicant sought the protection of Australia on the Convention ground of political opinion. He told that he was a Hindu living in Ahmedabad where he was an active member of the BJP party. He supported and worked with a Mr Kaushik Patel, a candidate for the Local Assembly. Mr Patel was opposed by a Mr Sheikh who represented the Congress Party in the constituency of Shahpur. The applicant said that during the time he was working for Mr Patel he came into contact with Muslim supporters of the Congress Party and on 4 December 2007, at about 1 a.m., whilst he was standing in front of a shop owned by a Muslim three named Muslims suddenly came up before him and started an argument. The applicant said that a crowd of Muslims soon came around and he was attacked with sticks. He was badly injured and became unconscious. He was hospitalised for a few days.
On 12 December 2007 four Congress Muslim workers came to the applicant and told him to leave the area and not to work for the BJP. They told him that if they found him at a polling station they would kill him. The election was due on 16 December 2007. The applicant said that he left Ahmedabad on the same day and went to Mumbai. The Congress Party candidate won the election for the particular ward in which Mr Patel had been standing. The applicant said that he tried to relocate but he found that difficult, and so decided to leave India and travel to Australia. The applicant believed that, if he returned to India, Muslim members of the Congress Party will kill him and his family.
The applicant was questioned closely by the Tribunal about his fears and asked whether or not he had reported the incident on 4 December 2007 and the threats that were issued to him on 12 December 2007 to the police. The applicant said that he had not done so because, he argued, the police responded to those people who were in power. The Tribunal put to the applicant that in fact the BJP had won the Gujarat elections and the Ahmedabad elections and that whilst the Congress Party did win the ward of Shahpur it was not in government or in control of either Ahmedabad or Gujarat. The applicant told the Tribunal that he believed that once he had been targeted by Muslims they would not leave him alone. The Tribunal put to the applicant certain independent country information which indicated that Hindus were in the majority in India and that they were protected by the police.
The Tribunal accepted that the applicant was a Hindu supporter of the BJP and of Mr Patel in particular. It accepted the applicant’s assertions that Mr Patel had stood for the Shahpur ward in the Gujarat elections and that he had lost. It noted that the population of Ahmedabad was
80 percent Hindu. In regard to the applicant’s claims about physical injury the Tribunal said:
“The applicant claims that on 4 December he was physically injured and knocked unconscious by Muslims and/or Congress party members. He was hospitalised. He was verbally harassed on 12 December 2008. As a consequence he was forced to relocate his family. He claims that he is unable to rely completely on the authorities as they only come when everything is finished. I do not accept as plausible that a person who suffered physical injuries to the extent of being rendered unconscious and being hospitalised, who claims to suffer ongoing harassment and who was forced to relocate from his place of residence would not report these incidents to the police. When put to the applicant that the independent evidence cited above indicates that the police protect Hindus and BJP supporters he responded that may be true. He has a fear of Muslims not the police. I am of the view that had the applicant feared any harm from Congress party members or supporters and/or Muslims he would have reported these incidents to the police. It does not ring true.
Furthermore, the Convention normally will not be engaged where State protection has not been sought in circumstances where such protection might reasonably have been forthcoming. If the applicant’s country provides a level of protection which the applicant is entitled to expect according to international standards then the applicant will not satisfy the elements of Article 1A(2), even if there remains a well-founded fear of harm (MIMA v S152/2003).” [CB 78-79]
The Tribunal took the view that the independent evidence before it indicated that the Indian police would provide appropriate State protection and it did not suggest that Muslims who attack Hindus or BJP Party supporters or members were not prosecuted. Indeed, the Tribunal considered the situation was quite to the contrary.
The Tribunal also noted the applicant’s evidence that after he had gone to Mumbai he did return to Ahmedabad and that nothing had happened to him. The Tribunal indicated that it was satisfied that that return to his home town indicated a lack of subjective fear of persecution. The Tribunal did not consider that, as an ethnic Hindu, if he returned to India he would be subject to persecution now or in the reasonably foreseeable future.
At the end of the hearing the applicant asked the Tribunal whether it could grant him some further time to obtain documents. The Tribunal notes at [CB 80] that it asked the applicant what the documents were:
“He told the Tribunal that those documents were a letter from K Patel, that he was a supporter of his and had worked for him and the BJP during the past election. As I have accepted the applicant’s claims in relation to his activity of being a supporter and worked for K Patel and the BJP, and in the light of the Tribunal’s requirements to come to its decision within 90 days of constitution, I have refused the applicant’s request for additional time to provide a letter from K Patel.”
At the hearing today the applicant provided the Court with a copy of an amended application which had been kindly prepared by Mr Julian Gormly of Counsel who had given the applicant advice under The Minister’s scheme. Counsel for the Minister indicated that he was able to deal with the matters raised in that amended application. The ground of the amended application was that the Tribunal did not comply with s.425 of the Migration Act 1958 (Cth)
“…in that it did not accord the applicant procedural fairness because it did not give the applicant a sufficient opportunity to give evidence or make submissions on determinative issues.”
The ground particularises the fact of the applicant being attacked on
4 December 2007and that this attack had been accepted by the delegate. The particulars note that the Tribunal did not accept as plausible the claim that a person who suffered physical injuries and ongoing harassment and who was forced to relocate would not report these incidents to the police and continued:
“(d) During the hearing the Tribunal did not warn or put to the applicant that the attack or the ongoing harassment had not occurred, but instead put to the applicant that had he reported the attack and the threats the Indian authorities could have provided effective protection.
(e) Further, the applicant sought the Tribunal’s permission to submit documents which confirmed that all the incidents had happened to him, and the Tribunal refused: CB 74.4 and on the CD recording of the hearing from 45.02 to 45.52. The applicant also referred to documents he wanted to submit at 1.43.”
In SZBEL v Minister for Immigration (2006) 228 CLR 152 the High Court indicated that where a fact is accepted by the delegate then an applicant would normally be entitled to presume that it was not a matter in issue before the Tribunal unless the Tribunal makes it absolutely clear either that that particular fact is in issue, or that everything that the applicant says is in issue. If an applicant wishes to raise an argument that this was not told to him by the Tribunal and therefore he was entitled to assume that the Tribunal accepted that part of the story which the delegate had previously accepted he should establish this by bringing to the Court a transcript of the hearing. This has not been done in this particular case. It seems to me that it would be difficult for the applicant to raise an SZBEL argument because the Tribunal made it quite clear to the applicant that it did not accept that the harassment that he alleged had occurred.
At [37] [CB 73] the Tribunal says:
“When asked what caused him to flee India he responded that on 4 December 2007 a person from the Congress Party beat him and he was in hospital, and on 12 December they threatened him not to work for Patel. When asked if he went to the police he responded that he had not. The Tribunal explained to the applicant that he cannot come to Australia and seek protection claiming that the Indian government had not given him protection when he did not seek protection from the police force that would give him protection.”
I would read this paragraph as clearly indicating to the applicant that the Tribunal had doubts as to whether the alleged assaults had ever taken place. There is another reason why I would not support the granting of constitutional writs on the ground requested by the applicant and that is because at [63] [CB 79] the Tribunal indicated that it was satisfied that the applicant’s return to Ahmedabad after 17 December 2007 indicated a lack of subjective fear of persecution. This is an entirely independent ground upon which the Tribunal’s decision was made.
In regard to the complaint that the Tribunal refused to grant the applicant the time in which to provide additional documents, there is no obligation on a Tribunal to grant this time and to the extent that it exercised discretion with regard to the refusal, the grounds upon which it exercised that discretion are clearly set out and appear to be reasonable. Sub-paragraph 1(e) of the amended application seems to suggest that the applicant asked for permission to submit more than the document from Mr Patel. But again no transcript or tape of the Tribunal hearing has been provided.
What has been provided is an affidavit from the applicant annexed to the amended application. That affidavit exhibits all the documents that the applicant wished to submit to the Tribunal. They are a letter from Mr Patel and some documents relating to what the applicant claims is the change of address of his business. The letter from Mr Patel makes no mention whatsoever of the assaults and the moving of the applicant’s business does not establish that such assaults took place. Even if I was to consider that the Tribunal fell into jurisdictional error by refusing to grant the applicant the time to submit these documents I would have exercised my discretion against remitting the matter to the Tribunal because I do not believe that the documents could possibly have assisted him.
In these circumstances the applicant has failed to convince me that the Tribunal’s decision is affected by jurisdictional error. I dismiss the application. The applicants must pay the respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 August 2009
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