SZNPK v Minister for Immigration
[2009] FMCA 806
•13 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 806 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – conducting Tribunal hearing by video-link not a denial of procedural fairness – Tribunal’s factual findings not reviewable – merits review not available in judicial review proceedings – allegation of bias not proved. |
| Migration Act 1958, ss.36, 65, 424, 425, 429A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| First Applicant: | SZNPK |
| Second Applicant: | SZNPL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1185 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 August 2009 |
| Date of Last Submission: | 13 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2009 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1185 of 2009
| SZNPK |
First Applicant
| SZNPL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, are citizens of India. The first applicant claims to fear persecution in India because of his political activities as a member of the BJP. His wife, who is the second applicant in these proceedings, has made no claims of her own but relies on her status as a member of the family unit.
After the applicants’ arrival in Australia on 16 October 2008, they lodged an application for protection visas. This was refused by the Minister’s delegate on 28 January 2009. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have 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 claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 76 – 79). Relevantly, the first applicant alleged:
a)he worked as a political activist for the BJP in Ahmedabad in the five years immediately preceding his departure from India. This involved “canvassing” and assisting the local mayor, who was also a member of the BJP, and referring local problems to him;
b)his other political activities included arranging “the shed” where BJP candidates would speak and arranging for loud speakers and microphones;
c)he was targeted by members of the Congress Party because his canvassing work was going well; because that party wished to enlist his help; because he did not want to join that party; and because he was respected by some locals;
d)in the twelve months prior to his departure from India
i)he “did not go out” as he had been harassed and beaten by his political opponents in mid-2007 while at home. He later said that he had in fact been beaten on two or three occasions but did not mention this in his written claims as it would have taken too long;
ii)he received one threatening phone call and was threatened in person two or three times. He later said that the threatening phone calls were continuous;
iii)he continued to work in his usual place of employment; and
iv)he and his family continued to reside in his usual home in Ahmedabad;
e)he had “lots of problems in Gujarat”: threatening phone calls, threats made to his family, the fact that he did not want to join the Congress Party and problems which had been caused for his wife and daughters;
f)he could not relocate to another part of India because “the Congress people reach everywhere” and his political opponents would trace him and harm him;
g)he could not get protection as the local police were corrupt and were connected to or associated with the Congress Party. Also, when he reported his problems to the police, they did nothing;
h)he variously said that the BJP would not protect him; that the BJP could not be with him to protect him all the time; and that the BJP would help him only if he were engaged in government work;
i)he also feared harm from Muslims;
j)if he returned to India, he would not engage in political activities as his family did not want him to. Also, he did not want himself or his family to be harmed; and
k)he has not engaged in any political or other activities while in Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons 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 was not satisfied that the first applicant was a political activist for the BJP or that he was engaged with the BJP at all. Be that as it may, and noting that persons engaged in local politics in India might do the kinds of work the first applicant claimed he did, the Tribunal accepted that he was a low profile and/or minor and/or occasional worker for the BJP in Ahmedabad;
b)the Tribunal accepted that the first applicant may have been harmed in mid-2007 but found that he had fabricated his later-made claims to have been beaten on two or three occasions and to have been subject to continuous telephone threats. In this connection, the Tribunal noted that:
i)he did not mention these claims previously in writing and only mentioned them after it was put to him that his evidence might not satisfy the Tribunal that he was of much, if any, adverse interest to anyone in Ahmedabad;
ii)were the applicant and his family indeed subject to ongoing threats and other forms of harm, it would ordinarily be anticipated that they would take some steps to protect themselves. However, they continued to reside in their usual home and the first applicant continued to work at his usual place of employment. The first applicant conceded that both locations were known to his political opponents;
iii)he claimed that he “did not go out” in the twelve months prior to his departure from India when clearly he ventured from his home on a regular basis to attend work. The Tribunal was satisfied that this was further evidence of the first applicant’s willingness to embellish his evidence where he believed it would support his case and did not accept that he was in hiding or did not go out much in the twelve months preceding his departure from India; and
iv)in any event, the Tribunal was satisfied on balance that as the BJP had been in power in Gujarat since 2001 to 2002, state protection would have been provided to the first applicant if he had in fact been subject to harm by Congress Party members or others for reasons of his work for the BJP in Gujarat;
c)the Tribunal accepted that the first applicant may have been subject to verbal abuse on one or two occasions and may have received approximately one threatening phone call from his opponents in the twelve months prior to his departure from India. However, based on the evidence put to it, the Tribunal was not satisfied that this amounted to persecution;
d)the Tribunal accepted that the attack in mid-2007 might amount to persecution for the purposes of the Convention. It also noted that it was possible, based on the first applicant’s claims, that one of the essential and significant reasons that he curtailed his political activities in Gujarat was due to his fear that he or his family might be harmed. Irrespective of this however, the Tribunal was satisfied that the first applicant could safely relocate within India, noting that:
i)the Tribunal was not satisfied that the first applicant feared harm from Muslims generally in India, only from those who were associated or otherwise connected with the Congress Party. Even so, based on country information, the Tribunal was not satisfied that Hindus (as the first applicant claimed to be) or non-Muslims have, without more, a real chance of persecution from Muslims in India;
ii)the first applicant’s alleged political opponents, if they had retained any ongoing adverse interest in him, had had ample opportunity to harm him and his family in the twelve months prior to his departure from India but did not do so;
iii)the fact that the first applicant did not take any real steps to protect himself and/or his family satisfied the Tribunal that he had fabricated his claims to have been subject to more serious harm in the twelve months prior to his departure from India;
iv)the Tribunal was not satisfied that the first applicant, since his departure from Gujarat, was of any continuing adverse interest to the Congress Party or anyone else such that his opponents would have any interest in tracing him should he relocate within India; and
v)even if the first applicant wished to continue to engage in work for the BJP, there was no real chance of him being subject to harm amounting to persecution should he relocate, given that it is one of the major political parties in India and he was only a minor worker;
e)finally, the Tribunal found that the applicants could reasonably be expected to relocate within India, noting that:
i)they have shown themselves willing and capable of residing in Australia, a country with a language, history and culture significantly different from their own;
ii)the first applicant can speak, read and write Hindi and Gujarati, indicating that language presented no barrier to relocation;
iii)the first applicant was previously employed for ten years in India and therefore appeared to have the skills that would enable him to find work elsewhere; and
iv)no evidence was provided that there were concerns with respect to infirmity, health services or education or country information which satisfied the Tribunal that relocation on these grounds was unreasonable.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal failed to provide the applicant with an opportunity to appear before it, and it thus failed to comply with the mandatory requirements of section 425(1).
2.The Tribunal did not use the country information as a specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.
3.The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 20 April 2009 was effected by actual bias constituting judicial error.
Failure to comply with s.425
The first ground pleaded in the application was particularised as follows:
(i)Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word ‘before’ its natural English meaning, in the context, of ‘in front of’) in the one place, in order that the Applicant may present their case.
(ii)The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the applicants did not ‘appear before’ the Tribunal.
It is apparent from the material in the Court Book that the Tribunal’s hearing was conducted by video-link, the applicants being in Griffith and the presiding Tribunal member being in Sydney. There can therefore be no doubt that the applicants were invited to give evidence and present arguments as s.425 required in the circumstances. That section relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
The Act permits the Tribunal’s hearings to be conducted remotely. In this connection, s.429A provides:
429A Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
An applicant’s rights to procedural fairness before the Tribunal are codified, to the extent of its terms, by div.4 of pt.7 of the Act. Section 429A is one of the provisions in that division. Consequently, any argument that procedural fairness requires that an applicant and the presiding Tribunal member must, for the duration of a Tribunal hearing, be physically in the same room founders on s.429A. This conclusion is supported by the reasons for judgment of Reeves J in SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 where his Honour considered an allegation relevantly identical to the one presenting for consideration in these proceedings.
Clearly, the Tribunal’s decision concerning whether to hold a hearing by video-link is a discretionary one and it is possible that the exercise of that discretion could miscarry. However, there is no evidence of that in this case. For instance, the letter inviting the applicants to a hearing reproduced at CB 66 advised them that the hearing would be conducted by video conference and invited them to advise it should they have preferred to attend in person in Sydney. There is no evidence of such a request having been made nor of any facts or circumstances which would suggest that the Tribunal should not have exercised its discretion in the way that it did. Specifically, however, the evidence does not support a conclusion that the Tribunal’s discretion miscarried.
For these reasons, the first ground alleged in the application is not made out.
Country information
To the extent that the second ground pleaded in the application means anything, it appears to allege that the Tribunal preferred “general information” which it gathered in preference to “country information”. What “general information” might be and how it might be distinguished from “country information” was not made clear.
However, the choice of what evidence to use to reach factual findings and the weight which should be accorded to any particular evidence are matters for the Tribunal. Fact-finding is an area of the Tribunal’s responsibility into which the Court cannot trespass. For these reasons, this ground does not disclose jurisdictional error on the part of the Tribunal.
Applicants satisfied Convention test
The applicants allege that the Tribunal failed to consider their claim against the Convention tests which it had actually cited in the first part of its decision. They also allege that they satisfied those tests. The first issue to consider in connection with this ground is whether the Tribunal did, indeed, apply the Convention tests because, if it did not do so, it would have failed to satisfy obligations imposed on it by ss.65 and 36 of the Act.
The Tribunal’s decision record reveals that it did in fact apply the Convention tests correctly and considered the applicants’ claims against those tests. But in any event, even if the Tribunal had erred in its application of the Convention tests to the applicants’ claims as far as they related to their life in Gujarat, it found that any fears they may have had would be adequately addressed if they relocated within India. Applying the correct tests, it found that relocation was a reasonable and practicable option for them and that it was reasonable to expect them to take this course.
Having concluded that the Tribunal did not err in its application of the Convention tests to the applicants’ claims, the Court cannot review the conclusions which the Tribunal reached concerning whether the applicants’ circumstances satisfied those tests and thus the criteria for the grant of protection visas. Conclusions as to the merits of applications to the Tribunal cannot be reviewed in judicial review proceedings such as these.
For these reasons, the third ground pleaded in the application is not made out.
Bias
The applicants allege that the Tribunal was biased and that this is demonstrated by its failure to investigate their claims. Relevantly, actual bias can be proven if it can be demonstrated that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might be presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. However, an allegation of this sort must be distinctly made and clearly proved. The evidence before the Court does not come close to proving this very serious allegation. The Tribunal’s decision record discloses that it conducted a careful hearing and considered the evidence and the arguments which were put to it by the applicants properly and with sufficient attention and care. The Tribunal considered the claims made to it as it was required to. It had no duty to investigate or to make the applicants’ case for them.
For these reasons, I find that the fourth ground pleaded in the application is not made out.
Section 424
In his written submissions, the Minister raised the possible application of s.424 to the Tribunal’s initial written correspondence with the applicants. However, as this is not an issue which the applicants have raised in their application or in their submissions today, it is not a matter which the Court is required to consider.
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-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 August 2009
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