SZNHP v Minister for Immigration
[2009] FMCA 541
•10 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 541 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(2)(a); 91S; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZATV v Minister for Immigration (2007) 233 CLR 18 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 |
| Applicant: | SZNHP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 526 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 June 2009 |
| Date of last submission: | 10 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 526 of 2009
| SZNHP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 February 2009 and handed down on 11 February 2009.
The issue before this Court is whether the Tribunal’s findings were open to it on the evidence and material before it and whether it applied the correct law to those findings in reaching its conclusions.
The applicant claims to be a citizen of India whose father was an active member of the Communist Party of India – Marxist (“CPIM”). The applicant also claimed to have been an active member of the Students Federation of India, being the student wing CPIM (“the Applicant”).
The Applicant arrived in Australia on 17 April 2008 having departed legally from Mumbai on a passport issued in his own name and a Cultural/Social – Sport (TE 421) Temporary Resident visa issued on 1 April 2008.
On 14 May 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 10 June 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 7 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 10 February 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 March 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he expanded upon his claims of a fear of persecution in India by Muslim activists by reason of his political activism and his Hindu religion.
The Applicant claimed he joined a student organisation affiliated with the CPIM in the 1980’s. He claimed he was elected as the Unit Secretary and Area Committee member in 1986 and as a leader of the CPIM while attending the Arts Science College. The Applicant claimed that prior to 1995 he was attacked and seriously injured on several occasions by Muslim students and members of the Indian Muslim Students League resulting in hospitalisation on a number of occasions. The Applicant reported all incidents to police and investigations were conducted.
The Applicant complained that over the next 14 years he received frequent threatening telephone calls.
On 25 March 2008, the Applicant claimed that he was attacked by a group of ten or twelve Muslims on his way home from swimming training. The Applicant claimed that at the time of the attack, his wife received a telephone call threatening not to contact police. However, the Applicant filed a complaint with the police the following day. The complaint was accepted and the police commenced investigations. However, the Applicant was unable to identify his assailants.
The Applicant claimed that thereafter his wife received many threatening telephone calls and so moved with his child to her parents.
The Applicant claimed that he sold his property in India and came to Australia for protection.
The Delegate’s decision
On 10 June 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 7 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 16 July 2008 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 20 August 2009 to give oral evidence and present arguments. This hearing was later postponed twice, first to 20 August 2008 and then to 25 September 2008. This hearing was adjourned and resumed on 23 October 2008.
On 25 September 2008 and 23 October 2008, the Applicant attended Tribunal hearings and gave evidence.
The Tribunal noted that it had regard to evidence given at those two hearings, documentary material in the Department file and Tribunal case file, material referred to in the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“7. Because the Tribunal accepted many aspects of the Applicant’s claims, it is convenient to begin directly with the Tribunal’s findings and reasons (at CB 260 [126]-[162]).
8. The Tribunal assessed the Applicant’s claims against the Convention grounds of religion, political opinion and membership of a particular social group. The Tribunal identified the particular social group as “Muslim person who has taken part in BJP activities and Hindu Temple activities” (CB 260 [129]).
9. The Tribunal found that the Applicant was a credible witness and that he had submitted genuine documents (CB 261 [130]).
10. The Tribunal accepted the Applicant’s evidence that he was involved, but did not get into serious trouble, in student politics at high school (CB 261 [131]).
11. The Tribunal accepted, further, that the Applicant was an active member of the communist “SFI” (or Students Federation of India) and that he was the leader of that organisation when he joined the Nehru Arts and Science College, having received assistance with his admission to that institution. While a student there, the Tribunal accepted that the Applicant conducted “political demonstrations, boycotts and strikes” (CB 261 [132]).
12. With respect to particular incidents, the Tribunal also accepted that:
(a) in 1989, the Applicant and a friend were attacked and injured by around 10 members of the “MSF”, a Muslim based party opposed to the SFI and its members because the SFI is perceived to be “against Muslims” (CB 261 [132], [133]). The Tribunal accepted that the Applicant was hospitalised and that the incident was reported to the local police who took statements at the hospital and gave the incident a case number (CB 261 [132]).
(b) in 1990, after a demonstration, the Applicant and a friend were again attacked by leaders of the MSF, resulting in the Applicant’s hospitalisation with serious injuries. Again, the police came to the hospital, took statements and gave the incident a case number (CB 261 [134]).
(c) in 1994, the Applicant and a friend were attached by members of the “IUML” (or Indian Union Muslim League) and that the Applicant was again seriously injured and admitted to hospital. Again, the incident was reported to police. The perpetrators were arrested but subsequently released on bail (CB 262 [135]).
13. The Tribunal accepted that these three incidents were significant, although there were a number of clashes (CB 262 [136]).
14. The Tribunal found, consistently with the Applicant’s evidence, that there were no physical attacks on the Applicant for 14 years from May 1994 until 25 March 2008 (CB 262 [137]).
15. The Tribunal, however, did not accept the totality of the Applicant’s evidence, in particular his evidence that he received regular oral threats over that 14 year period. The Tribunal concluded that the Applicant did not have a subjective fear of persecution during that period because the Applicant did not report the threats, he did not leave India sooner (even though he had a passport) and that he did not feel “seriously” a threat that he would be “butchered” (CB 262 [139]). The Tribunal did not believe that this latter threat had occurred (CB 262 [140]) and found that the threats “were not regular or frequent” (CB 262 [141]).
16. The Tribunal did accept that the Applicant was attacked by a group of Muslims on 25 March 2008, although it expressed concerns about the Applicant’s evidence about the number of people involved and his claim that his wife received a simultaneous threat by telephone (CB 262 [142]). The Applicant reported this incident to police who registered the crime. The investigation remains pending because the attackers were not personally known to the Applicant and he was unable to identify them (CB 263 [143], [145] and [147]).
17. The Tribunal:
(a) found that the attacks on the Applicant before 1995 were for a Convention reason but found that the Applicant sought effective state protection which was not withheld (CB 263 [144]);
(b) did not accept the Applicant’s claims made in his protection visa application that key figures of the IUML or the “NDF” (National Democratic Front) were involved in attacks on him (CB 263 [145]);
(c) found that the attack in March 2008 was not Convention related as the perpetrators acted in a private capacity. The Tribunal considered that, even if the attack was because he swam at the Hindu Temple pond and participated in BJP and RSS functions, the Applicant had sought effective state protection (CB 263 [146], CB 264 [152]; CB 265 [153]-[155]).
18. The Tribunal did not accept the Applicant’s claims that he and his wife had received a series of threats after March 2008 (CB 265 [156]-[58]).
19. The Tribunal found that, in any event, the Applicant could reasonably relocate within India. In reaching this finding, the Tribunal had regard to the following:
- the lack of any official restriction on movement between states in India;
- the Applicant’s travel to Australia, including the fact that he is “talented”;
- the presence of large Muslim communities in several states in India;
- the Applicant’s personal qualities, including his education, his swimming abilities and an ability to obtain work in other parts of India (CB 266 [158]).
20. The Tribunal concluded, therefore, that there is not a real chance that the Applicant will face serious harm for a Convention reason in the reasonably foreseeable future if he were to return to India (CB 266 [159]-[160]).
21. The Tribunal accordingly affirmed the delegate’s decision to refuse to grant the Applicant a protection visa (CB 267 [161]-[162]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 20 March 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant the contact details of legal services providers and interpreting and translating services.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him.
At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an amended application filed on 30 April 2009 as follows:
“1. The Tribunal failed to analyse properly the “future harm” I, May face, if I have to go back to India, Hence due to this failure, the Tribunal had committed a seriuuse (sic) jurisdictional error by failing to assess or carry out the real chance test before dismissing the applicants claim
- The Tribunal failed to consider that I am having well founded fear because of My Religion and political opinion
- The Tribunal found that I am a credible witness, the Tribunal also find that I am provided genuine documents to the tribunal (Court book page 261, Paragraph 2)
- The Tribunal has found that I am a credible witness, and also found that some 14 years ago I had suffered harm which would be described as persecution, but that does not mean that Tribunal accept that all his evidence is true
- I have given adequate evidence to the Tribunal that I was physically assaulted on several occasion, but the tribunal member failed to consider my genuine claim,
2. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do)
3. The Tribunal had acted illogically when concluded that “The Tribunal is not satisfied that the applicant has a well founded fear of persecution for his political opinion and/or religion and/or any other convention reason if he returns to India. The Tribunal committed a clear jurisdictional error” because it failed to weigh properly the effect My claim,””
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application, other than the accompanying affidavit required by statute.
Ground 1
In support of Ground 1, the Applicant made submissions that were no more than a disagreement with the Tribunal’s findings and conclusions. The Applicant had difficulty with the notion that the Tribunal had found his evidence credible in some respects but had not accepted all his claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal largely accepted the Applicant’s evidence of past harm.
However, in relation to the Applicant’s evidence of attacks prior to 1995, the Tribunal accepted that, although they were Convention related and involved serious harm, the Applicant had managed to avail himself of effective state protection. The Tribunal found that the Applicant reported each of the incidents to police and that the police undertook investigations. The Tribunal accepted the Applicant’s evidence that some of the assailants were arrested and their cases pending. The Tribunal’s finding was expressed as follows:
“The Tribunal finds that the applicant had recourse to the police and reported serious incidents to them when they occurred. The evidence before the Tribunal is that the cases were recorded, statements were taken, investigations took place, persons were arrested and court cases took place.”
In the circumstances, the Applicant availed himself of state protection which the Tribunal found to be effective. That finding was open to the Tribunal on the evidence before it and for the reasons it gave. Pursuant to Article 1A(2) of the Convention, part of the criteria for being a refugee is an inability or, because of such fear, an unwillingness to avail oneself of protection in the country of nationality (Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [28]).
In the circumstances, the attacks on the Applicant prior to 1995 did not satisfy the Refugees Convention as amended by the Refugees Protocol.
Thereafter, the Tribunal had regard to the 14 year period during which the Applicant claimed to have received regular and frequent threatening phone calls. However, the Tribunal found that the Applicant did not feel those threats seriously because the Applicant took no steps to report to police any such threats. For that reason, the Tribunal found that there was no subjective fear on the part of the Applicant. Further, the Tribunal found that after the Applicant joined the police force in 2006, the telephone threats were neither regular or frequent. The Tribunal also had regard to the fact that the Applicant had been issued with a valid passport in 1993 which had remained current and would have enabled the Applicant to leave India.
Again, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
In relation to the March 2008 attack, the Tribunal accepted the Applicant’s evidence that such incident had occurred, however, found that the attack was not Convention related. The Tribunal found that, unlike the earlier attacks, the Applicant was unable to identify his assailants and that “the perpetrators acted in a private capacity.” Further, the Tribunal found that, even if the March 2008 attack had any Convention nexus, again, the Applicant had sought effective state protection. The Tribunal did not accept that the government was complicit or tolerated any of the attacks on the Applicant and that Indian authorities did not deliberately withhold protection from the Applicant.
The Tribunal found that the Applicant lodged an oral complaint with police the day after the attack in March 2008, despite having alleged that his wife received a threat from the assailants not to contact police. The Tribunal found that the police had registered the complaint and did not accept the Applicant’s evidence that he told police not to worry about registering the crime because he was coming to Australia.
The Tribunal also found that India provides its citizens with the requisite level of protection and that the state protection provided to the Applicant was adequate and effective. For those reasons, the Tribunal found that the Applicant’s fear of serious harm is not well-founded.
The Tribunal rejected the Applicant’s claims that his wife received several threatening phone calls, although accepted that his wife did receive an anonymous telephone call on 28 August 20008 threatening to kill the Applicant, which was reported to police. Again, the Tribunal found that the police were investigating the claim.
The Tribunal did not accept the Applicant’s evidence that his wife and child are with her parents because of a fear of death. The Tribunal did not accept that the Applicant would have left his wife and children if there were threats of death. Neither did the Tribunal accept that the Applicant sold his house because of threats. Nor was the Tribunal was satisfied that any threats were Convention related. The Tribunal found that, in any event, such threats were not tolerated by the Indian government and that the government was not complicit in any such threats.
Those findings referred to above were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Moreover, in any event, the Tribunal considered whether the Applicant could reasonably be expected to relocate in India. The Tribunal found there were no official restrictions on moving from one state to another in India. The Tribunal found that the Applicant has travelled alone successfully to Australia where he does not speak the language fluently and has left his family in India. The Tribunal found that the Applicant was well educated and a talented swimmer who would be able to obtain work in other parts of India.
The Tribunal also found that “there are large Muslim communities in several states in India” in support of the reasonableness of relocation by the Applicant. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s claims of fear were from Muslims and, read in context, in my view, the Tribunal had intended to state that there are large “Hindu” communities in several states in India and that the use of the word “Muslim” is no more than a typographical error.
In the circumstances, the Tribunal gave consideration to the practical realities facing the Applicant in considering the issue of relocation and its findings were open to it on the evidence and material before it and for the reasons it gave (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-270 per Black CJ; Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]).
Further, the Tribunal’s finding in respect of the reasonableness and ability of the Applicant to relocate within India was an independent basis for the Tribunal’s decision. Accordingly, any error in the Tribunal’s consideration of relocation would not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention related reason (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]). In such circumstances, even if there was error in the decision of the Tribunal, which in my view there is not, the Tribunal’s finding on relocation is entirely independent and would warrant the withholding of relief (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; SZATV v Minister for Immigration (2007) 233 CLR 18 at [27]).
Otherwise, Ground 1 is no more than a disagreement of the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 appears to assert that the Tribunal failed to consider a test identified in s.91R(2)(a) of the Act.. Such an allegation misconceives the purpose of s.91R(2)(a). Section 91R(2)(a) of the Act merely purports to provide various non-exhaustive instances of “serious harm”.
The Applicant made no meaningful or relevant submissions in support of Ground 2. The Applicant simply reiterated his disagreement of his complaint that the Tribunal found that he was attacked on 24 March 2008 but did not accept that it was by Muslims or for a Convention related reason. As stated above in these reasons, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is rejected.
Ground 3
The Applicant made no relevant or meaningful submission in support of Ground 3 other than to assert that the Tribunal said that the Applicant could relocate outside of Kerala because he was a policeman and could get support from police. However, a fair reading of the Tribunal’s decision record does not suggest that the fact that the Applicant was a policeman or may get support from police was part of its reason for its findings in respect of relocation. It may be that in the course of discussing the issue with the Applicant, the Applicant may have gained that impression. In any event, such a complaint is not capable of identifying jurisdictional error on the part of the Tribunal.
Otherwise, again, Ground 3 is no more than a disagreement with the Tribunal’s findings. As stated above, such a complaint invites merits review which this Court cannot undertake. A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave careful, thorough and thoughtful consideration to the Applicant’s claims which it discussed with him in great detail. As stated above in these reasons, its findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
No illogicality is identified in the grounds or by the Applicant. In any event, illogicality does not by itself establish jurisdictional error (NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]).
Accordingly Ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 10 June 2009
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