SZNOA v Minister for Immigration

[2009] FMCA 1012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1012

MIGRATION – Review of decision of RRT – where applicant claims Tribunal failed to enquire – where applicant’s claims seek merits review.

MIMA v Respondents S152/2003 (2004) 205 ALR 487
NAHI v Minister for Immigration [2004] FCAFC 10
Tran v Minister for Immigration [2004] FCAFC 297
Minister for Immigration v Le [2007] FCA 1318
SBBA v Minister for Immigration [2003] FCAFC 90
Minister for Immigration v SZIAI [2009] HCA 39
SCAA v Minister for Immigration [2002] FCA 668

First Applicant: SZNOA

Second Applicant: SZNOB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1062 of 2009

Judgment of: Raphael FM

Hearing date: 1 October 2009

Date of Last Submission: 1 October 2009

Delivered at: Sydney

Delivered on: 1 October 2009

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’ costs assessed in the sum of $3,700.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1062 of 2009

SZNOA

First Applicant

SZNOB

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 13 October 2008.  On 21 November 2008 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa together with his wife who completed form D of the application indicating that she did not have her own claim to be a refugee.  On 24 January 2009 a delegate of the Minister refused to grant a protection visa and on 13 February 2009 the applicants applied for review of the delegate’s decision.  The Tribunal invited the applicants to a hearing which he attended and on 8 April 2009 it determined to affirm the decision under review.  I shall refer in these reasons to the male applicant as “the applicant”.

2. The applicant stated that he was a person to whom Australia owed protection obligations because of his involvement in politics in India.  He claimed to be a member and activist in the BJP who worked for his local BJP candidate in Ahmedabad during the December 2007 election.  He claimed that at this time he was attacked and injured by several Muslims who were members of the congress party and were opposed to the BJP.  He left Ahmadabad and sought safety in Kalol, a smaller town approximately 35 kilometres away, but he was there located and attacked on 12 February 2008.  He believed that the persons who attacked him in Kalol were the same as the people who had attacked in Ahmadabad, although he said that they had their faces covered but he recognised their voices.  The applicant told that he had reported these incidents to the police but the police had investigated and were unable to find anyone so no arrests were made.

3. The Tribunal asked the applicant about his claims and asked him whether he continued to live in Kalol after 12 February 2008.  He said that he had lived there until he came to Australia.  He said that he had not encountered any further problems with Muslims or other political opponents in the six months before he left for Australia.  The Tribunal referred the applicant to certain independent country information which indicated the type of problem that the applicant claimed to have encountered was quite common at election times but the relative quiet thereafter indicated that this was not something of a permanent nature.  The Tribunal also pointed out that the BJP were in power in Gujarat and supporters of the BJP could expect as much assistance from the police as was possible.  The Tribunal advised the applicant that the independent country information indicated that India was able to provide a reasonable level of state protection particularly to a person of Hindu religion in the state of Gujarat.

4. In its findings and reasons the Tribunal accepted the applicant’s story but did not accept the concerns which he had expressed:

   “[41]…The Tribunal has formed the view that the applicant’s fear that he was a person of ongoing adverse interest to Muslim supporters of the congress party in Ahmadabad, at the time he departed the country, was not well-founded.  The Tribunal is satisfied by the applicant’s description of his circumstances in India that his political opponents did not demonstrate any apparent interest in harming him in the six months before he left the country.

   [42] The Tribunal has accepted the applicant’s claims that he was attacked by political opponents in December 2007 and February 2008.  It has considered whether he is at risk of similar harm in the future if he is again actively involved with the BJP during an election…”

5. The Tribunal concluded that if such a risk arose and the applicant sought protection from the state then he would get adequate state protection to the extent that was considered appropriate by the High Court in MIMA v Respondents S152/2003 (2004) 205 ALR 487 at [26]. The Tribunal concluded that it could not be satisfied that the applicant faced a real chance of serious harm in India from political opponents such that it gave rise to a well-founded fear of persecution for reasons of his political opinion.

6. On 1 May 2009 the applicant filed an application for review in this court.  He gave four grounds upon which he said that the Tribunal had fallen into jurisdictional error.  The first ground related to the use by the Tribunal of the country information.  He stated:

   “(a)The Tribunal did not use the country information as specific.”

   I am not entirely clear what this means but my reading of the court book and the Tribunal’s decision would seem to indicate that it chose relevant independent country information and provided the applicant with it.  The choice and assessment of country information is a factual matter for the Tribunal NAHI v Minister for Immigration [2004] FCAFC 10 [11 to 13] and it is for the Tribunal to identify the material it finds relevant and to give it the appropriate weight Tran v Minister for Immigration [2004] FCAFC 297 [5-7]. I am unable to see any jurisdictional error in this claim.

7. The second complaint made by the applicant relates to the finding that he was a person who might have been of concern to Congress Party supporters in Ahmadabad.  He says that the Tribunal, having made that finding, failed to properly analyse any future harm he may face if he went back to India.  It will be clear from the extracts of the Tribunal’s decision that I have referred to that this is exactly what the Tribunal did do and there is no support for this argument. 

8. The third ground takes issue with the Tribunal’s finding that he is not a person to whom Australia owed protection obligations.  This is a request to the court to substitute its views of his position to those of the Tribunal.  It is a request for merits review which is impermissible. 

9. The final ground stated that the Tribunal failed to investigate his claims, especially the claims of persecution in India, and the Tribunal was therefore affected by bias.  I am quite satisfied from my reading of the Tribunal’s grounds and reasons that it did investigate his claims.  It is for the applicant to make the claims out, not for the Tribunal to make his case for him.  There is no general duty upon a Tribunal to make inquiries Minister for Immigration v Le [2007] FCA 1318. There is no obligation upon the Tribunal to make good an applicant’s claims SBBA v Minister for Immigration [2003] FCAFC 90; Minister for Immigration v SZIAI [2009] HCA 39. The failure to take steps which are not required of a Tribunal cannot possibly constitute evidence of bias which involves a state of mind by the decision-maker whilst exercising the decision-making power that he is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or document arguments may be presented; see also SCAA v Minister for Immigration [2002] FCA 668 [36] per von Doussa J.

10. Before me today the applicant said that the Tribunal could not understand his case and it took the wrong decision.  I cannot accept this.  The Tribunal clearly understood the applicant’s case.  Indeed, it accepted some of its elements.  It made a rational decision along the basis of information that was in its possession and the findings that it made were open on the material before it.

11. Finally, the applicant, in reply to Ms Whittemore, produced some documents which he claimed were “evidences”.  I informed the applicant that I was unable to accept these documents for three reasons.  Firstly, he was in Darwin and the court was sitting in Sydney at his request; the court did not have possession of the documents.  Secondly, the applicant sought to produce these documents in reply to Ms Whittemore and not in his initial submissions to me.  I would add that the applicant attended a directions hearing before a Registrar of this court in which he was ordered to file and serve any affidavit evidence upon which he proposed to rely before 6 August.  The third and most important matter is, of course, that this is not a court of appeal but a court of review and any additional evidence that the applicant may have relating to the factual nature of his claims is irrelevant to a review of a decision that has already been made.  In these circumstances, I am unable to find grounds upon which the applicant can succeed in his claim that the Tribunal fell into jurisdictional error.  I dismiss the application.  I order that the applicant pay the First Respondent’s costs which I assess in the sum of $3,700.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  15 October 2009