SZNTQ v Minister for Immigration
[2010] FMCA 366
•20 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTQ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 366 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – matter turns on its own facts. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZNTQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 654 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 May 2010 |
| Date of Last Submission: | 20 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,550.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 654 of 2010
| SZNTQ |
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 worked as a local correspondent for a daily newspaper. He claims that in 2004 certain articles which he had written attracted the adverse attention of Hindu extremists. He claims that he was threatened, following which he went into hiding, but that the Hindu extremists continue to search for him. He claims that he will be attacked if he returns to India.
The applicant claims to fear persecution in India because of his political opinion and his religion.
After his arrival in Australia on 9 May 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 18 September 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.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous decision dated 30 June 2009 which was quashed by order of this Court on
26 November 2009.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its 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 – 18 of the Tribunal’s decision. I now summarise those factual allegations.
Protection visa application
The applicant made the following claims in his protection visa application form and in a statement to the Minister’s department dated 18 July 2008:
a)he is a Muslim;
b)in 2004 he began work as a journalist for Drishti, an evening daily newspaper;
c)on 22 July 2004 an article which he had written was published by the newspaper. That article referred to events which had taken place in Marad in January 2002 and May 2003 involving the deaths of Muslims and Hindus;
d)because of the publication of this article, some Hindu parties such as the Rashtriya Swayamsevak Sangh (“RSS”), the Vishwa Hindu Parishad (“VHP”) and the Bajrang Dal made threats against him. On the morning of 23 July 2004 a group of people came to his home and threatened to kill him if he continued writing about Marad. The incident was reported in Drishti in that evening’s edition;
e)he did not see anyone in the group and therefore could not provide evidence to the police;
f)he received a lot of “junk phone calls”;
g)in 2004 he moved to the United Arab Emirates (“UAE”) where he worked as a driver. When he returned to India for a holiday in 2006 he started receiving telephone calls again and was forced to stay in his wife’s and relatives’ houses;
h)in 2007 he returned to India (from the UAE) for surgery and was again threatened by “these groups”. He had to live in his wife’s house for five months; and
i)he returned to the UAE after his recovery but, once there, received threatening phone calls on his mobile phone. He returned to India in February 2008.
Tribunal as first constituted
The applicant made the following additional claims at a hearing before the Tribunal as first constituted:
a)he had not moved elsewhere in India because the Hindu extremists had a large network and they could, if they wanted to, find people anywhere in the country;
b)he received threatening phone calls and threatening letters while in India. He did not report these calls to the police because the callers threatened to target his family members if he did so;
c)after one and a half years in the UAE he started receiving threatening phone calls on his mobile phone;
d)he had, prior to the publication of the Marad articles, been reporting on the activities of the RSS, the VHP and the Bajrang Dal and their enmity towards him originated from this. However, they started to harass him after the publication of his first Marad article because they were concerned about what he would write in subsequent articles;
e)he did not make an official complaint to the police about the attack on his home but, even if he did, the police could not protect him constantly;
f)he still wished to do media work to help the community but had to consider the potential consequences for him and his family. He has not written anything since the publication of his articles on 22 and 23 July 2004 (the latter regarding the attack on his home); and
g)he did not go out in public during his return trips to India from the UAE. He stayed in his father-in-law’s house, with friends or at different places and did not venture out in the daytime.
Under cover of a letter dated 4 June 2009 the applicant produced to the Tribunal a copy of one of the threatening letters which he had purportedly received.
Tribunal as secondly constituted
At a hearing before the Tribunal as secondly constituted on 22 January 2010, the applicant made the following additional claims:
a)prior to the Marad articles, he had been warned to cease writing about the activities of the Hindu extremists but this had only been a small problem. However, things became more serious after he wrote about the Marad incidents;
b)when the Hindu extremists came to his home on 23 July 2004 it was not just about the Marad articles; they threatened to kill him if he continued to write about their activities in general. Specifically, they were concerned that he was going to publish more details about their local secrets and activities;
c)he did not change his mobile phone number in the UAE because this alone would not have protected him and they would have been able to find his new number anyway;
d)in 2008 he only stayed in the UAE for three weeks because “they” had traced his mobile phone again and had threatened him;
e)the second Marad incident had occurred in 2004;
f)while it was true that Kerala was a law abiding state where legal recourse was available to those who needed it, he would, at most, get protection for a day or two and this would not be sufficient to save his life. The Hindu extremists had a “high networking” organisation and would be able to execute their plans despite all the protection that was available from the government; and
g)his family in Kerala continue to receive threatening phone calls.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal again 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 did not accept that the applicant was threatened by Hindu extremists because of the articles which he wrote about the Marad incidents, noting that:
i)contrary to his evidence, the second incident in Marad took place in May 2003, over a year before the publication of his articles and the matter was, by this time, “ancient history”;
ii)it was difficult to understand why Hindu extremists would be concerned about the applicant’s articles given that, firstly, the second Marad incident was committed by Muslim extremists and, secondly, the applicant had been publishing articles about the activities of Hindu extremists for quite some time;
iii)both Marad incidents resulted in criminal proceedings against a number of persons, some of whom were found guilty of various crimes in 2008. Further, all the Muslim families who had been displaced as a result of the first Marad incident had returned to Marad. The applicant’s claim that the Hindu extremists remained in control of the area did not therefore accord with the available information;
iv)the applicant claimed that the first of his articles was published on 22 July 2004 and that the following morning Hindu extremists came to his home and threatened to kill him if he continued to write about Marad. However, he did not claim that the Hindu extremists returned to his home to threaten him after the publication of his second article that same evening (restricting themselves to making threatening calls and sending threatening letters). In the Tribunal’s view, this aspect of the applicant’s account did not make sense;
v)neither did it make sense that the applicant, after receiving the threatening phone calls in the UAE, would decide to flee to another country rather than simply change his mobile phone number. Additionally, his claim that the Hindu extremists would be able to locate him in the UAE, despite the fact that they did not trace him during the two years he was there, did not make sense and the Tribunal considered the applicant’s claims in this regard to be fanciful; and
vi)the applicant returned to his home area in Kerala, the very area where he claimed to fear persecution, three times between 2006 and 2008. In the Tribunal’s view, this behaviour did not suggest that he feared persecution in India;
b)the Tribunal gave greater weight to the view it had formed of the applicant’s credibility in light of the above factors than to the threatening letter which the applicant produced to the Tribunal as first constituted;
c)in any event, the Tribunal found that there was nothing in the material before it to suggest that there was a real chance that the authorities in Kerala would fail to provide the applicant with effective protection from any threat which he might face from Hindu extremists because he is a Muslim. In this connection, the Tribunal noted that according to country information:
i)Kerala is a law abiding state where legal recourse is available to those who feel threatened or persecuted;
ii)the BJP has negligible support in Kerala; and
iii)the area from which the applicant comes is a Muslim stronghold; and
d)the Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion, his religion or his membership of the particular social group of journalists in India if he were to continue his part-time work as a local correspondent. The Tribunal found that, even were the applicant to face any such threats, he would be able to seek effective protection from the authorities in Kerala.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. Jurisdictional error in the decision made by RRT.
2. Breach of Natural Justice.
3. Will be filed later
Today the applicant also made submissions challenging the correctness of the Tribunal’s findings on the merits of his application.
At the outset, it should be recorded that the applicant has filed nothing in the Court since he filed his application and affidavit initiating these proceedings on 25 March 2010. Consequently, the third ground set out in the application need not be considered further.
Further, neither of the other two allegations set out in the application is particularised and, as a result, they lack meaningful substance. However, of the two, the second is the more specific and it will be considered first.
Breach of natural justice
The rules of natural justice are, to the extent that they govern the conduct of the Tribunal’s hearing, codified in those provisions found in div.4 of pt.7 of the Act. Of those, the most important for current purposes are ss.424A and 425. Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
A review of the Tribunal’s decision record reveals that all of the information it relied on in affirming the delegate’s decision was written information which the applicant provided to the Minister’s department or to the Tribunal; other information which the applicant gave the Tribunal for the purposes of the review or independent country information which the Tribunal sourced itself. All such information falls within the exceptions to the operation of s.424A(1) found in s.424A(3). As a consequence, the Tribunal had no obligation to serve a s.424A notice on the applicant. In fact, it did serve such a notice but this was directed to information touching on an issue which, in the result, was not the reason or part of the reason for the Tribunal’s affirming of the delegate’s decision. No breach by the Tribunal of its obligations under s.424A is apparent.
As to s.425, it provides relevantly:
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 Tribunal discharged its obligations under s.425(1) by inviting the applicant to a hearing which he attended. It also discharged its obligations under s.425(1) by putting its various concerns to the applicant during the course of its hearing. In particular, it raised concerns regarding the plausibility of the applicant’s account and, implicitly, with his credibility generally. As these were the matters which were ultimately determinative of the review, the Tribunal did what s.425(1) required of it. It might also be noted that during the course of its hearing the Tribunal raised with the applicant the possibility of him obtaining state protection in Kerala. Consequently, issues arising in relation to the second independent ground for affirming the delegate’s decision were also raised with the applicant and the Tribunal discharged its s.425(1) obligations in this connection.
As to the remaining provisions of the Act found in div.4 of pt.7, it is not apparent that the Tribunal failed to observe any requirements which they may have placed on it. Certainly, the applicant has not pointed to any.
For all these reasons, I conclude that the Tribunal did not breach the natural justice hearing rule codified in the Act.
The second element of the rules of natural justice is the bias rule. The applicant has not suggested that the Tribunal’s review was blighted by actual or apprehended bias and nothing which would support such an allegation is apparent to me.
For these reasons, the allegation made in the second ground of the application is not made out.
Jurisdictional error
The remaining matter to consider arising out of the application is the global allegation of jurisdictional error on the part of the Tribunal.
In this connection, nothing has been put or is apparent which would suggest the Tribunal misunderstood or misapplied the tests which were relevant to its review of the delegate’s decision. Further, to the extent that the Tribunal made findings of fact, these were open to it on the evidence. Consequently, I find that the allegation of jurisdictional error made in the application has not been proved.
Oral submissions
Today the applicant pressed the merits of his claim that he feared persecution in India. However, it is not open to the Court to review the Tribunal’s decision on the merits of visa applications. Such findings are reserved exclusively to the Tribunal, the Court’s role being limited to determining whether the Tribunal has properly applied the law both in conducting the review and in reaching its decision. The Court’s power of review does not extend to reconsidering the ultimate decision which the Tribunal reached.
Consequently, the submissions made by the applicant today do not provide a basis upon which the Tribunal’s decision may be set aside.
Conclusion
For these reasons, I conclude that jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 May 2010
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