SZNXA v Minister for Immigration

[2010] FMCA 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 148

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – neither s.424A or s.424AA of the Migration Act 1958 require the Tribunal to notify an applicant of independent country information – Tribunal has no general duty to undertake enquiries.

Migration Act 1958, ss.65, 91R, 424AA, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

First Applicant: SZNXA

Second Applicant: SZNXB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2231 of 2009

Judgment of: Cameron FM

Hearing date: 12 February 2010

Date of Last Submission: 12 February 2010

Delivered at: Sydney

Delivered on: 11 March 2010

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2231 of 2009

SZNXA

First Applicant

SZNXB

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of India. The first applicant, who is a Muslim, alleges that in 2007 he and the second applicant, who is a Hindu, commenced a relationship and later became engaged. He claims that despite objections from their families they continued to see each other and that, as a consequence, he was threatened and assaulted by the second applicant’s brother. He claims that they were forced to run to Australia because the second applicant’s brother has political connections which would enable him to find them wherever they went in India.

2. After their arrival in Australia on 10 February 2009, the applicants lodged an application for protection visas, the second applicant being included in that application as a member of the family unit. The application was refused by a delegate of the first respondent (“Minister”) on 25 May 2009. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. 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.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claims for protection are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 95 – 103).

2. The first applicant made the following claims in a statement provided with the protection visa application:

   a)the applicants met in June 2007 and became engaged shortly thereafter. They conducted most of the relationship over the phone and rarely met because the second applicant was concerned that her family, who were strict Hindus, would react adversely. She was particularly concerned about the reaction of her brother because he had “contacts with the political Hindu leader, Raj Thakerey”;

   b)

   the second applicant’s family eventually came to suspect that she was involved in some kind of relationship. On

   
   

   19 November 2007, when she went to meet the first applicant, her brother followed her and subsequently learned of the relationship. The second applicant’s brother informed their parents and threatened her, saying that if she continued to meet the first applicant “unfortunate things could happen”;

   c)nevertheless, the applicants met again a week later but the second applicant’s brother approached them, assaulted the first applicant and fractured the second applicant’s knee. The first applicant was told that he would be killed if the couple met again. His own family learned of the relationship that day and were also opposed to the match because it was a Hindu-Muslim one;

   d)the second applicant recovered from her injuries and returned to work. She assured her family that she would not meet the first applicant again but continued to speak to him on the phone during meal breaks;

   e)they were able meet in April 2008 on the second applicant’s birthday but her brother found out and assaulted her. He took her mobile phone away and confined her to the house for some days. He then went to the first applicant’s home with a few supporters and warned him that he would not tolerate any further meetings. A fight started between the first applicant’s family and the brother;

   f)in November 2008 they “decided to run”. It was difficult for them to go anywhere in India because the second applicant’s brother had a friend in “Thackeray’s group”. They made inquiries and decided to come to Australia where they have no relatives or friends who might inform their families.

3. The first applicant made the following additional claims at a hearing before the Tribunal:

   a)he did not have much knowledge of the political connections of the second applicant’s brother because he had no interest in politics and had never thought to enquire. In addition, he did not have time to find out anything about the party;

   b)there was no legal barrier to the applicants marrying in India and moving to another location in that country. However, Thackeray has many contacts and he would be able to find them wherever they went in India. He would also be able use corrupt police to find them anywhere in India; and

   c)he and the second applicant did not report these assaults to the police because he felt that he would have had to pay the police a bribe in order to secure their assistance. If he did not, there was a risk that they would lay charges against him.

4. The second applicant’s evidence at the hearing was generally but not totally corroborative of the first applicant’s evidence. She also identified the “MNS” as the political party with which her brother was connected.

The Tribunal’s decision and reasons

1. 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 accepted that there was strong opposition on the part of the second applicant’s family to the applicants’ relationship which arose from their differences in religion. It also accepted that this opposition resulted in a physical confrontation between, on the one hand, the second applicant’s brother and his acquaintances and, on the other hand, the first applicant and his family. However, the Tribunal did not accept that there was any external political dimension to the opposition faced by the couple, noting that:

   i)had there been a political connection exacerbating the danger to them, the Tribunal would have expected the applicants to be in a position to say much more about the MNS than the fact that it was headed by Thackeray;

   ii)the applicants claimed that they were not interested in politics and were too busy at the time to know much about the party in question. The Tribunal said that it would have expected anyone in their position to have been sufficiently interested to find out some details about the nature of the political connection which could allegedly harm them;

   iii)in all the circumstances, the Tribunal was not satisfied that the second applicant’s brother had a political connection with the MNS such that that party would go to the trouble of seeking the applicants throughout India; and

   iv)but for the claimed involvement of the second applicant’s brother in a political party, the applicants’ claims would have had no link to the Convention ground of political opinion;

   b)in any event, there was no evidence before the Tribunal to suggest that the MNS carried any weight outside the state of Maharashtra and its manifesto suggested that the party sought to attract people of all religions and castes. In light of this evidence, the Tribunal did not accept that the MNS would be interested in pursuing beyond Maharashtra a couple who had no interest or involvement in politics;

   c)the Tribunal found that the applicants would be able to find work in any of the large cities where Hindi, the national language of India, is spoken, noting that they were both educated and could speak Hindi and English. The Tribunal was of the opinion that they could be expected to live in such a city;

   d)given the vast population in India, the Tribunal found that the chance of the second applicant’s brother and/or his associates finding them in another major city and doing them harm was so remote as to not constitute a “real chance”; and

   e)the applicants’ claim that the political associates of the second applicant’s brother would use corrupt police to find them elsewhere in India was, in the Tribunal’s view, mere speculation. However, even in the event that the police did become involved, the Tribunal considered that the likelihood of them being sought throughout the length and breath of India, and found, was too remote to be considered a “real chance”.

Proceedings in this Court

1. The grounds of the application commencing these proceedings were pleaded as follows:

   1)The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s.424A which relevantly states …

   It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue. If I would provide a submission prior to RRT decision, I believe that I would have a different decision.

   2)The Tribunal did not give to the applicants before the hearing the independent country information that it had about India. The Tribunal used his information (RRT decision record pages 12 to 13). This was against section 424A of the Migration Act 1958.

   3)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 mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

2. In an affidavit sworn on 14 September 2009 the first applicant alleges that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied him procedural fairness because it failed to investigate his claims.

Failure to honour s.424A undertaking

1. The first allegation is that the Tribunal failed to honour an undertaking which it gave to the applicants related to obligations it may have had under s.424A of the Act. On a factual level it is not made out. At no point did the Tribunal serve on the applicants a written notice under s.424A, preferring instead to make verbal notification, pursuant to s.424AA, of a number of matters which it considered fell within the scope of that provision. In para.43 of its decision the Tribunal records that it explained the procedures of the hearing and the applicants’ rights under s.424AA of the Act. Section 424AA provides:

   424AA  Information and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)the Tribunal may orally give to the applicant 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)     if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)orally invite the applicant to comment on or respond to the information; and

   (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

2. What the applicants characterise as an undertaking by the Tribunal was, in fact, the Tribunal’s expression of its statutory obligations pursuant to s.424AA. As far as s.424AA is concerned, nothing in the Tribunal’s decision record suggests that at any point during its hearing did the applicants request additional time to respond to matters which the Tribunal had put to them pursuant to s.424AA. No attempt was made by the applicants to lead evidence that they had, in fact, sought further time. Further, as no s.424A notice in writing was served, and there is nothing in the Tribunal’s decision record to suggest that the Tribunal ever indicated that it would serve a notice in writing, the allegation, to the extent that it refers to s.424A, mistakes what happened at the Tribunal hearing and such obligations as the Tribunal had.

3. As to the “undertaking” more generally, consideration of allowing the applicants additional time to respond to the matters put to them depended on them asking for such additional time. As already noted, the Tribunal’s decision records no request by the applicants for additional time in which to respond to the matters put to them.

4. The Tribunal’s notification of certain matters to the applicants, purportedly pursuant to s.424AA, also satisfied its obligations under s.425 to identify to them issues arising in relation to the decision under review. Although that section contains no provisions similar to s.424AA(b), the identification of such issues in order that an applicant might address them would be an empty gesture if that applicant were denied the practical opportunity of doing so. However, that is not this case. There is nothing in the evidence which suggests that the applicants sought additional time to respond by way of written submission to the matters which were notified to them.

5. For these reasons, the first ground alleged in the application does not disclose jurisdictional error on the Tribunal’s part.

Independent country information

1. Neither pursuant to s.424A nor s.424AA is the Tribunal required to notify an applicant of independent country information: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415. That case’s authoritative discussion of the operation of those sections is a complete answer to this allegation.

Relocation

1. The third allegation made in the application is that the Tribunal failed to consider whether the applicants would suffer serious harm as understood by s.91R(2)(a) were they to relocate within India. This allegation fails because the Tribunal did consider the potential consequences of relocation. Specifically, the Tribunal rejected the submission that Raj Thackeray and the MNS would be interested in pursuing the applicants throughout India and considered the possibility that they would be found, were they to relocate, as being so slight as to not amount to a real chance. In the absence of a real chance of persecutory harm befalling the applicants were they to relocate, the Tribunal had no need to consider the potential application of s.91R(2) in the context of relocation.

2. Further and more generally, there was no need for the Tribunal to consider the issue because it rejected the applicants’ claims to fear persecution in India whether in their home locale or elsewhere. Absent a finding that the applicants have a well-founded fear of persecution for a Convention reason in India, there was no call for the Tribunal to consider whether the persecution they allegedly feared upon relocation amounted to “serious harm” for the purposes of s.91R(2).

Failure to investigate claims

1. The Tribunal has no general duty to make enquiries: Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. A failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, may supply a sufficient link to the outcome to constitute a failure to review and thus a constructive failure to exercise jurisdiction: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]. However, no such circumstances existed in this case. That being so, it was for the applicants to put before the Tribunal such evidence and arguments as would satisfy it that they met the criteria for the grant of protection visas with the result that, pursuant to s.65 of the Act, it had to vary or set aside the delegate’s decision. The Tribunal’s decision reflects the fact that the applicants’ evidence and arguments did not satisfy it that they met those criteria. It had no obligation or duty to remedy the deficiencies in the applicants’ presentation by making enquiries of its own.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  11 March 2010