SZNGP v Minister for Immigration
[2009] FMCA 461
•22 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNGP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 461 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal did not fail to consider the evidence nor the claims made by the applicant – Tribunal’s decision not based on assumptions – Tribunal’s factual findings and conclusions not reviewable in judicial review proceedings – relocation within India was practicable – relocation finding was an independent basis of the Tribunal’s decision. |
| Migration Act 1958, ss.430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZATV v Minister for Immigration & Citizenship (2007) 81 ALJR 1659 Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437 VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 |
| Applicant: | SZNGP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 422 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 May 2009 |
| Date of Last Submission: | 13 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 422 of 2009
| SZNGP |
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 was a member of Muslim-based organisations. He alleges that while in India he came to the attention of the Rashtriya Swayamsevak Sangh (“RSS”) and that subsequently he was attacked twice.
The applicant claims to fear persecution in India because of his religion and his political activities.
After his arrival in Australia on 28 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 13 October 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.
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 – 14 of the Tribunal’s decision (Court Book (“CB”) pages 103 – 113). Relevant factual allegations are summarised below.
In a statement attached to his protection visa application, the applicant claimed that:
a)he joined the TMMK, a social movement, as a life member in order to bring progressive challenges amongst Muslim communities and in 1997 he was appointed District Secretary for Thanjavur District in reward for his service;
b)in May 2006, assembly elections were held and the Diravida Munnertra Kalagam (“DMK”), which his party had supported, came to power because of the work and support of the Muslim votes;
c)the DMK did not keep their promise to the TMMK to provide 3.5% of government jobs to Muslims but the TMMK did not protest because some of their leaders had been given positions. The applicant condemned his party leaders for not protesting and as a result his membership with the TMMK was suspended;
d)he joined the Tamil Nadu Thowheed Jamaath (“TNTJ”) in protest and, because of his position as District Secretary, a group from the TMMK followed him and joined the TNTJ;
e)as a result of this, people from the TMMK and ruling government warned the applicant they would put him in gaol and on one occasion they attacked him at his house. He also claimed that the opposing RSS party also began to attack him and his family; and
f)although he intended to escape to another state in India, the government is ruled by the Congress Party and communists who are allied with the DMK and some states are ruled by the BJP, an associate of the RSS. He claimed he could not live anywhere in India peacefully and so he departed India, leaving his wife and children behind.
The applicant appeared before the Tribunal on 22 December 2008 to give evidence and present arguments, making the following additional claims:
a)he had arranged to travel to Australia on a short stay business visa which was organised by a friend who arranged everything to help him escape;
b)from 1990 until 2008 he worked in a rice mill which formerly belonged to his father;
c)he left his previous address in Adirampattinam five days before he left India and his wife and children are living with his father-in-law which is about 250m from the previous family home;
d)the applicant said that he ran the rice mill business until July 2008, however, he effectively closed the mill about four months before he left. When asked why he closed the mill, the applicant variously stated that:
i)he had previously held a government contract which he had lost about a year and a half before the mill was closed down;
ii)there were previously eight people working at the mill, but four left because they are Hindus and he is Muslim. He also said that RSS people had told these four staff members not to work with the applicant because he is a Muslim;
iii)the place was running at a loss after losing the government contract;
iv)he had no proper labourers; and
v)he was afraid to go there because the premises are located on the main road of Adiramapattinam and the RSS have been giving him trouble;
e)the applicant claimed that the trouble from the RSS started in 2002 but from January 2008 he experienced very serious problems and thought he should leave the country. He claimed that:
i)in March 2008 while driving at night with a friend they were hit by a vehicle travelling at great speed. His friend was hurt and the vehicle did not stop, however, they got the number plate and found out it was a vehicle belonging to the RSS; and
ii)in May 2008, eight people attacked him and his group in their vehicle. With one other group member the applicant immediately reported the matter to the police in Adirampattinam. They explained to the police what had happened and were able to identify one of the attackers. The police later told the applicant that the named person had already prepared an alibi;
f)in 2004, he and about 40 people from his political party helped victims of the tsunami in Mallipattnam by collecting funds and giving practical help. They stayed there for about one and a half months and some of the people they helped were impressed enough to want to convert to Islam. He later said that the RSS thought Muslims had been pressuring the villagers to convert to Islam but the applicant was the only one targeted by the RSS, because he was the leader;
g)he joined the TMMK in 1996 and was dismissed by the party in January 2008 because he did not like some of their activities and asked questions;
h)he joined the TNTJ in May 2008. The applicant also said that TNTJ members do not become involved in politics, but can offer support in certain circumstances. He also said that it is a TNTJ policy to pursue and secure quotas for appointments of Muslims to certain positions as had been put in place by the previous British government;
i)the Tribunal asked the applicant whether there is any ill feeling from the TMMK towards those who left to join the TNTJ and if people from the TMMK were involved in any incidents against him. In reply he said that:
i)at the time of the March incident, he was still in the TMMK;
ii)at the time of the May incident, he was sure that it was people from the RSS who attacked him; and
iii)indirectly, people from the TMMK have done certain things against him, including applying pressure in connection with his work, giving his son problems at school and giving information about him to the RSS;
j)he produced a letter which he said he recently received from his wife, claiming that she had been receiving phone calls, that RSS people had come to the house at night asking about him, had cursed him and searched for him. She stated that she was afraid and that she and the children were living in danger. She also stated that she has kept the rice mill closed and closed the family home. The applicant stated that he does not have any phone contact with his wife;
k)when asked about the source of the continuing antagonism towards him from the RSS, the applicant variously stated that:
i)in 2003, the RSS office located on the main road in Adirampattinam was set on fire. Although the RSS knew that he did not cause the fire, out of revenge he was put in gaol and held for seven days on suspicion of causing the fire;
ii)the RSS are still interested in him because they are high class Hindu Harijans and he was the leader of the team that went to the village after the tsunami. He said that the RSS thought that Muslims were pressuring the villagers to convert to Islam;
iii)the RSS do not target all members of the TNTJ, only particular persons and he is targeted because he is seen as a leader;
iv)they are still interested in him because they are afraid that he will lead people to Islam. They think that he applied pressure and paid money to the villagers who converted. The RSS have his name in their list; and
v)the villagers who converted to Islam have only started showing themselves recently and that is why he is facing pressure;
l)when the Tribunal put to the applicant that it may appear reasonable in the circumstances for him to relocate to an area away from those places and away from those people from whom he fears harm, the applicant stated that:
i)they will be able to locate him wherever he goes as the DMK is in government with RSS supporters;
ii)he has been gone for five months, however, they are still searching for him; and
iii)they will locate him anywhere in Tamil Nadu and he has no language suitable to other areas; and
m)the Tribunal put to the applicant that on his evidence, he has considerable assets in India including the rice mill and the family home. Further it noted that his son appears to be safe and his wife and daughters have not suffered any actual harm of any kind either before he left India or since. In reply the applicant said that he does not know what will happen tomorrow and the situation may be different. He also said that when his wife and daughters go out they cover their heads with saris and do not go out unless for an urgent reason.
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 found that the applicant’s oral evidence on his political associations and experiences was consistent and given in a plausible and convincing manner. The Tribunal accepted that the applicant had been a district leader of the TMMK in Thanjavur district and was subsequently a member of the TNTJ. However, the Tribunal formed the view that, although his evidence was for the most part truthful, the applicant exaggerated and over-played certain aspects of that evidence;
b)although the Tribunal accepted that the applicant closed his business in 2008, it found that the reason for this was essentially because it had become unviable after the loss of government contracts which had formed a large part of the work and income. The Tribunal did not accept that the applicant had problems retaining staff due to pressure or interference by the RSS;
c)the Tribunal accepted that the applicant was in a car accident in March 2008 but noted that there was no additional evidence supporting the applicant’s claim that this accident was intentionally caused by an RSS supporter, beyond his assertion that he was targeted in this incident. The Tribunal found that this episode was a routine traffic accident, noting that at that particular time the applicant was not an active member of either the TMMK or the TNTJ;
d)the Tribunal accepted that the applicant’s vehicle was attacked by a group of people in May 2008, however, the Tribunal found that the response of the police did not indicate that they failed to take the matter seriously. Rather, it found that the inquiries of the police were considered complete when the named suspect provided an alibi;
e)the Tribunal did not accept that the conversion of villagers to Islam following the relief effort in Mallipattnam in 2004 was attributed by the RSS to the applicant’s influence or that the RSS is targeting him for that reason. The Tribunal considered that the applicant exaggerated the importance of his role in the relief effort and the RSS’s perception of his role and influence. It had difficulty accepting that he alone would be held responsible for the relief effort and its subsequent consequences or that conversion to Islam by any of the villagers in Mallipattnam would have gone unnoticed for some years;
f)while the Tribunal was prepared to accept that in 2003 the applicant was questioned about the incident concerning a fire in an RSS office, it did not accept that he was held for seven days. It formed the view that he exaggerated his treatment on this occasion;
g)the Tribunal accepted that the applicant faced harassment in Adirampattinam, that he was dismissed from his position in the TMMK in January 2008 and that he joined the TNTJ party in May 2008. However, the Tribunal found that he suffered harassment because he is a Muslim and someone perceived by local Hindus to be of some means and wealth. Even so, the Tribunal concluded that the harassment was not serious harm amounting to persecution and was not viewed as such by the applicant noting that:
i)he continued to reside in his home and run the rice mill until at least July 2008;
ii)his wife and family reside with his wife’s father not far from the family home and she has made no attempt to leave;
iii)the claimed threats have not resulted in any actual attempt to harm his wife or their daughters;
iv)the Tribunal formed the view that if RSS people were serious in their threats they could have readily located and harmed the applicant’s family members where they had been living for the previous six months; and
v)notwithstanding the pressure he alleged he had been suffering in the year prior to his departure from India, the applicant made no attempt to leave the family home, even on a temporary basis, during this period; and
h)the Tribunal was satisfied that in all the circumstances it would be reasonable and practicable for the applicant to relocate safely to a different part of Tamil Nadu or elsewhere in India, noting that his family situation, his assets and long history as a business man would assist him to resettle elsewhere in Tamil Nadu or elsewhere in India. Further, the Tribunal found no cogent reason why RSS members or supporters would continue to have an adverse interest in him in the future and did not accept they would continue actively to pursue him elsewhere in India.
Proceedings in this Court
The grounds of amended application were pleaded as follows:
(1)The Refugee Review Tribunal failed to exercise its duty under the Migration Act not to consider my political involvement and consequence persecution.
(2)The Refugee Review Tribunal made a wrong assumption about the applicant’s persecution …
(3)The Refugee Review Tribunal failed to realise the reality of relocation in the context of applicant’s particular circumstances.
Tribunal failed to consider persecution of applicant by reason of his political involvement
The first allegation pleaded in the amended application was particularised as follows:
The Tribunal did not consider my political involvement and consequence persecution that:
(i)The Tribunal did not consider my involvement with the TMMK and later on with the TNTJ; and
(ii)The Tribunal did not consider that there was a strong possibility to be persecuted by the RSS on return to India.
The assertion that the Tribunal did not consider the applicant’s involvement first with the TMMK and later with the TNTJ does not bear scrutiny. As the summary set out above at [7] and [8] demonstrates, the Tribunal did have before it information on the applicant’s political activities. Further, and as revealed by the summary of the Tribunal’s findings set out above at [9], the Tribunal accepted that the applicant was a member of both of the organisations referred to in the amended application. However, although the Tribunal did, contrary to the applicant’s assertion, consider the applicant’s political involvement, it concluded that he exaggerated and overplayed his story. In essence, it rejected the political colour with which the applicant sought to paint the closure of his business, the car accident in March 2008 and the results of the police inquiries in May 2008. The Tribunal also declined to accept the significance which the applicant ascribed to his relief efforts following the 2004 tsunami or his submission that the RSS would have considered him to have been a person of particular significance because of his activities at that time or because of the consequences of those activities.
The Tribunal’s assessment of the applicant’s evidence on these issues has direct significance for the second element of this ground of the application, namely that the Tribunal did not consider that “there was a strong possibility” that the applicant would be persecuted by the RSS were he to return to his country of nationality. The way the applicant has expressed this particular of the first allegation in the amended application suggests that he is challenging the Tribunal’s factual conclusion that he did not face a risk of RSS persecution were he to return to India. This construction of the application is borne out by the applicant’s written submissions which asserted that the Tribunal’s “decision” was internally contradictory. Such a submission must fail because the Tribunal’s reasoning was not internally contradictory as the applicant alleges and, moreover, this finding was open to the Tribunal on the evidence before it. For these reasons, this aspect of the applicant’s proceedings does not disclose jurisdictional error on the part of the Tribunal.
If, alternatively, the allegation is that the Tribunal erred because it failed to consider whether the applicant faced a risk of RSS persecution, for the reasons already discussed above at [12] this allegation cannot be made out. The Tribunal’s decision record makes it clear that it did consider whether the applicant would face such persecution but rejected his claims on this point, finding that those which related to the tsunami relief effort were exaggerated and those which related to the failure of his business and the events in March and May 2008 were unfounded.
For these reasons, the first ground alleged in the amended application is not made out.
Tribunal made a wrong assumption
The second asserted ground of review set out in the amended application was particularised as follows:
The Tribunal made a wrong assumption that:
(i)The applicant’s fear of persecution in India for the reason of his political opinion, his religion or any other Convention related reason is not well founded.
(ii)the Tribunal does not accept that the applicant’s association with Muslim League, his profile and his activities give rise to a real chance of persecution if he were to return to India and reside in Mumbai in the reasonably foreseeable future.
In his written submissions the applicant identified the following passage from the Tribunal’s decision as evidence of the “wrong assumption”:
The applicant’s fear of persecution in India for the reason of his political opinion, his religion or any other Convention related reason is not well founded. (para.91)
Were the Tribunal to have based its findings on assumptions, rather than on factual conclusions drawn from the evidence, then it would have erred. However, that it not what occurred in this case. The Tribunal set out in its decision record the evidence which was before it, described its consideration of that evidence and associated arguments and then articulated its findings and its ultimate conclusion on the review application. Far from being based on assumptions, the Tribunal’s decision met the criteria set out in s.430 of the Act and was otherwise unaffected by jurisdictional error in respect of its logical and evidentiary foundations.
However, his written submissions indicate that where the applicant refers in the amended application to the Tribunal having made “a wrong assumption”, what he really means is that the Tribunal reached a wrong conclusion. This allegation must fail because, absent vitiating circumstances such as bias or bad faith, in judicial review proceedings such as these the Court cannot question the Tribunal’s findings of fact. In the absence of such circumstances and given that the Tribunal’s findings and conclusions were open to it on the evidence, the Tribunal’s findings and ultimate conclusion on the application before it cannot be disturbed in these proceedings.
Finally in respect of the second ground in the amended application, to the extent that the second particular refers to the Muslim League, it bears no factual relationship to the applicant’s claims. At no point is it recorded that he claimed to have been a member of the Muslim League. For this reason, the second aspect of the particulars does not disclose a basis upon which the Tribunal’s decision may be set aside.
Decision on reasonableness and practicality of relocation wrong
The third ground set out in the amended application was particularised in the following terms:
There was no evidence to support the Refugee Review Tribunal’s finding that:
(i)In all the circumstances it would be reasonable and practicable for the applicant to safely relocate to a different part of India.
A person alleging a fear of persecution can be expected to relocate within their country of nationality if, depending on his or her particular circumstances and the impact on him or her of such relocation, it would be practicable to do so: SZATV v Minister for Immigration & Citizenship (2007) 81 ALJR 1659 at 1664 [23]-[24]. Contrary to the assertions contained in the particulars to this asserted ground of review, the Tribunal did turn its mind to these issues and, most relevantly, to the particular factual allegations made by the applicant in connection with the practicability of relocation: Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437, especially at 443C-D.
For these reasons, the third ground pleaded in the amended application is not made out.
But in any event, the Tribunal’s finding concerning the practicability of the applicant’s relocation within India was a ground supporting its decision which was independent of the Tribunal’s principal finding that it was not satisfied that he had a well-founded fear of harassment which could be characterised as serious harm amounting to persecution. Consequently, even were the Tribunal to have erred in respect of the practicability of the applicant relocating within India, my findings concerning the first two grounds of the amended application would mean such an error would not require the Tribunal’s decision to be set aside: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 May 2009
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