SZNKS v Minister for Immigration
[2009] FMCA 718
•15 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 718 |
| MIGRATION – RRT decision – Indian claiming persecution for religious and political activities – Tribunal held that there was no real chance of serious harm, and that the applicant could relocate – no jurisdictional error shown – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1 |
| Applicant: | SZNKS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 824 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 15 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 824 of 2009
| SZNKS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in September 2008, on a visitor's visa accompanied by her husband. On the evidence before me, the present whereabouts of her husband is obscure. On 15 October 2008 the applicant alone applied for a protection visa. A statement attached to the application made claims that she feared to return to her country of nationality, India.
The statement claimed that her father was a well-known member of the BJP Party in the state of Gujarat, with affiliations to other Hindu religious organisations. She said that while she was a student she was a member of the Hindu Student Federation in her college. She promoted the teachings of her father, and was active in welfare programs for Hindu students. She said: “I used to take active part in the general elections with my father”.
She claimed that Muslims threatened her father with death, that he was declared “the enemy of the Islam,” and that “during the very recent sectarian clashes my father was attacked many times, by the hands of the Muslims”. She said that “luckily he survived every times” but “my father was beaten and bashed by the hands of the Muslims, he was not given any protection, as such he went to the hidings along with my mother, I was left alone, I had no alternative but to flee from my home country”. She claimed that she had “also become a target of the Muslims, as after passing my graduation I actively took part with the activities of my father”.
The applicant was interviewed by a delegate on 2 December 2008. The applicant told the delegate that her father had gone into hiding overseas in 2006, but that she had continued to live in her family home and to study to complete a degree and commence post-graduate studies. The delegate concluded that these activities were inconsistent with the applicant’s claim to hold a subjective fear of persecution such that she had to flee India. The delegate also thought that the applicant could reasonably relocate within Gujarat, which is a state “controlled by the Bharatiya Janata Party (BJP)”.
The delegate refused the visa application on 9 December 2008, and the applicant appealed to the Tribunal. She did not present any corroborative evidence, but attended a hearing via video link from Griffith. The Tribunal gave a description of the hearing in its statement of reasons, and I have no reason not to accept that description.
During the hearing, the Tribunal compared what the applicant told it with what she had told the delegate and had put in her visa statement, and found various inconsistencies which it is unnecessary for me to detail. This included telling the Tribunal that her father had left India only five or six months before her departure to Australia. The picture of her father's activities in the BJP party and of her own activities was also different. She told the Tribunal that her father had been threatened and harassed, but did not refer to any other harm having been suffered by him nor by other members of her family.
The Tribunal put to the applicant its concern as to why her father had not been protected by agencies in Gujarat, and why she would be unable to relocate to a different place to avoid the people threatening her in her home town. According to the Tribunal, at the end of the hearing:
The Tribunal put to her that there were many inconsistencies between her evidence to the Department and what she had stated at the hearing. She stated that her interview with the delegate was her first interview in Australia. She was away from her parents and scared. She said some of the things she told the delegate were true and some things not true, but whatever she had told the Tribunal was true. She was asked if she wanted the Tribunal to rely on her evidence at the hearing in assessing her claims. She said whatever she had said at the hearing was the truth.
The Tribunal made a decision on 20 March 2009 affirming the delegate's decision. In its findings and reasons, the Tribunal treated the applicant's admission that not everything she had said in the past was true, and the inconsistencies in her evidence, in a manner which, in my opinion, was generous to the applicant. It said:
The Tribunal accepts her statement to the Tribunal that her oral evidence at the hearing represents the true version of her claims. The Tribunal, therefore, is prepared to rely on the applicant's oral evidence in assessing her claim and does not draw any adverse inference from the inconsistencies referred to.
The Tribunal considered the applicant's evidence about her and her father's political activities, and it said: “there was nothing in the applicant's evidence regarding her or her father's activities that would explain an intense, sustained level of enmity directed towards them by those politically or religiously opposed to them”. It said that it therefore found “the applicant's evidence as to why she and her father were targets of threats unconvincing”. It said also that the applicant's evidence as to why she and her father had attracted death threats was “unpersuasive”.
The Tribunal said that even if it accepted that she had been the subject of threats as claimed, her account of continuing to live in her home in her town, and of travelling to Ahmedabad to study, without ever having been approached “let alone physically harmed by those she claims to have threatened her” suggested that "those directing threats against her did not genuinely intend to harm her”. The Tribunal said:
On the basis of the evidence before it, including the applicant's own conduct, the Tribunal is satisfied that the applicant did not seriously feel threatened and those making the threats did not seriously intend to act upon them. The Tribunal further finds that the threats in this case did not amount to serious harm and do not give rise to any real chance of persecution for a Convention reason in the reasonably foreseeable future.
This reference by the Tribunal to “serious harm” is clearly a reference to s.91R(1)(b) and s.91R(2) of the Migration Act, to which the Tribunal had referred to at the start of its decision. In my opinion, the Tribunal’s assessment of the threats claimed by the applicant was consistent with the High Court’s discussion of those provisions in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1. This establishes that it is necessary for the Tribunal to assess the likelihood or risk of harm actually arising from threats, when assessing whether their making amounted to serious harm. I can detect no legal error in the Tribunal's reasoning at this point.
The Tribunal assessed the chance of the applicant being seriously harmed as “a remote chance”, if she returned to her home town and if she continued to engage in political activities at the same level as she was engaged in them in the past. It is clear, in my opinion, that the Tribunal's characterisation of the risk correctly distinguished such a chance with a “real chance” under the test applicable in refugee law.
The Tribunal said that it also considered “the issue of relocation … for the sake of completeness”. It said that the applicant's evidence “clearly suggests that her fears are confined to her locality”. The Tribunal said that it was not satisfied that she would be unable to relocate to a different state to avoid her political opponents, and it said that it was satisfied that it “is reasonable for her to relocate to a different part of India”. The Tribunal referred to States in India which are ruled by BJP and where Hindi-speaking Hindus are a majority. The Tribunal considered the applicant's personal circumstances in relation to relocation on the assumption that she was estranged from her husband. It thought that in the light of her capacity to live and work in Australia it would be reasonable and practicable for her to safely relocate to a different part of India.
For all its reasons given, the Tribunal said it was satisfied that her fear of persecution in India was not well founded and that she was not a refugee. I have considered the Tribunal's reasons and its procedures and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant's application asks the Court to send the matter back to the Tribunal for further consideration, but I am unable to make this order unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide the facts of the applicant's claims, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant's application sets out the grounds of review which she relies upon, and she has not filed any amended application, further evidence or written submissions. The application contains the following grounds:
1.The Tribunal applied the wrong test.
Particulars:
(a)By requiring independent evidence of a fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in effect, placing too high an onus of proof on the applicant and failing to give the applicant the benefit of the doubt.
(b)The Tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.
2.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant was not a credible witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3.The applicant satisfies the four key elements of the Convention definition as detailed in pages 2 & 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
These grounds are taken from a precedent which is commonly seen at present in this Court, and which reveals no thought being given as to how the paragraphs apply to the Tribunal's reasoning in the present case.
I am unable to detect any point in the Tribunal's reasoning where it “applied the wrong test”, and this assertion has not been explained to me in any written or oral submissions.
The first particular to ground one is incorrectly premised in relation to the present Tribunal's decision. The Tribunal's reasoning did not proceed upon a requirement of “independent evidence of a fact”, but assessed the risk faced by the applicant based upon a generous acceptance of her evidence to it. I can detect no error by the Tribunal in relation to the “onus of proof”.
No explanation has been given of the allegation in the second particular to ground one that the Tribunal “left out individual elements of the applicant's claims” nor as to the other elements in this particular, which is largely incomprehensible. In relation to the applicant's claims, as I have pointed out, the applicant abandoned some extreme elements in her original visa statement and claims to the delegate, and relied upon only what she told the Tribunal at the hearing. I can detect no element of her claims, so presented, which the Tribunal failed to address.
The second ground, alleging a denial of procedural fairness, is unexplained to me. If indeed this ground is an allegation of irrational or unreasonable reasoning, then there is no substance for that contention to be found in the material before me. The applicant clearly, in my opinion, was given a full and reasonable opportunity at the hearing to present her claims, and to address the issues upon which the Tribunal decided the matter. I can find no substance supporting ground two.
The third ground is, in my opinion, essentially an invitation for the Court itself to assess the applicant's refugee claims. However, this is the task of the Tribunal and not of the Court. I can detect no error by the Tribunal in its application of the Convention definition as adopted and modified by the Migration Act.
The applicant attended today, but had nothing to say to me.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by any jurisdictional error and I must therefore dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 3 August 2009
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