SZOEB v Minister for Immigration
[2010] FMCA 363
•24 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 363 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant unable to satisfy the Tribunal that he had a well-founded fear of future harm for a Convention reason – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZLFX (2009) 238 CLR 507 NAHI v Minister for Immigration [2004] FCAFC 10 SZBYR v Minister for Immigration (2007) 235 ALR 609 |
| Applicant: | SZOEB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 334 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 24 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 334 of 2010
| SZOEB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 25 January 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political persecution. The following statement of background facts is derived from the Minister’s written submissions, filed on 10 May 2010.
The applicant is a citizen of India who arrived in Australia on 8 July 2009 and applied for a protection visa on 31 July 2009. In a statement which accompanied his protection visa application, the applicant claimed that:[1]
a)he is of Jat background and his family members are all supporters of the political party known as the BJP. He first became interested in politics in 1993;
b)in 2001, he moved to the city of Sujangarh and became a legal adviser to the BJP;
c)at that time, a Mr Bahanwan Lal Meghwal was the Legislative Assembly member for Sujangarh and the leader of the rival Congress Party. Mr Meghwal was associated with a Mr Manish Harijan Valmiki. Manish was a Congress Party member who allegedly engaged in criminal activities with the support of the Congress Party;
d)in 2004, he enlisted the assistance of the Jat community to defeat Mr Meghwal's bid for re-election. This brought him to the attention of senior Congress Party leaders;
e)in 2006, Manish allegedly entered into an illegal property transaction. The applicant learnt of this and reported it to the authorities. The transaction was unable go ahead and this caused Manish significant financial loss;
f)Manish found out about the applicant's reporting of the transaction and made numerous attempts to kill him. He reported these attempts to the police and his party officials but was told that such occurrences were not uncommon in Indian politics;
g)in 2008, the Congress Party won the election and Mr Meghwal became a Minister. After that time, the applicant attempted to get police protection from Manish but was told that it is impossible to protect him while the Congress Party is in power; and
h)he was traumatised by his helpless situation, changed his address on a regular basis and decided to leave India to avoid being killed by Manish.
[1] Court book (CB) 27-29.
On 1 October 2009, the applicant attended an interview with the delegate, at which time he expanded on his claims.[2]
[2] CB 71.1.
On 1 October 2009, the delegate refused the protection visa application. The delegate found that:[3]
[3] CB 71-73.
a)although the applicant was actively involved in politics as a member of the BJP in his local constituency, he did not hold a political profile that would attract the attention of Congress Party members at the state or national level;
b)the applicant had not made any specific claims, nor provided any evidence, in relation to any threats made by Mr Meghwal. Accordingly, the applicant's claimed fears of a more generalised persecution involving state or national Congress Party members is not well-founded;
c)the delegate was not satisfied that the applicant had been attacked as claimed, or that he had reported the attack to the police. The delegate based this finding on the lack of documentary evidence and discrepancies in the dates on which:
i)the applicant claimed to have been attacked;
ii)the applicant claimed to have reported the attack to the police; and
iii)the court finalised its proceedings cancelling the transfer of Manish's property registration;
d)the claimed attack by Manish and the threatening phone calls which the applicant claims to have received since December 2008 do not amount to persecution;
e)the applicant's failure to depart India until more than two years after he claims Manish assaulted him casts doubt on the extent of any threat to the applicant's well being; and
f)it would be reasonable to expect the applicant to relocate away from any harm claimed to be feared in Sujangarh.
On 2 October 2009, the applicant applied to the Tribunal for review of the delegate's decision. On 17 December 2009, the applicant attended a hearing before the Tribunal and gave evidence. The Tribunal's decision contains an account of the evidence given by the applicant at the hearing.[4]
[4] At [41]-[61]; CB 109.4-113.4.
On 25 January 2010, the Tribunal affirmed the delegate's decision. The Tribunal found that:
a)it accepted that:
i)the applicant was involved with the BJP;
ii)the applicant had lodged a complaint in relation to the purchase of property by Manish;
iii)the applicant had been assaulted by Manish on one occasion; and
iv)the police had investigated the matter;[5]
b)in its view, Manish assaulted the applicant in an angry moment on one occasion and did not seek to do so again;[6]
c)the applicant's explanation why Manish only assaulted him on only one occasion, namely that Manish had been in prison between 2006 and 2009, was not true;[7]
d)it did not accept that Manish was a threat to the applicant after the alleged assault or that he had harassed the applicant as claimed after the BJP lost the election in 2008. The Tribunal was supported in that finding by the applicant's delay in leaving India;[8]
e)it was not satisfied that the applicant moved to another city because of any fear of Manish;[9]
f)although the applicant claimed that Manish would not harm him while the BJP was in power, he also claimed that the assault on him had occurred at a time when the BJP was in power;[10]
g)although the applicant claimed that the police would not protect him from Manish because the BJP was no longer in power, that evidence was not persuasive because the applicant had also provided the Tribunal with a document which indicated that the police had taken action against Manish on many occasions;[11]
h)had Manish wished to seriously harm the applicant, he had had ample opportunity to do so in the 2 year period after the assault took place;[12] and
i)it was not satisfied that there was a real chance that Manish would seriously harm the applicant in the reasonably foreseeable future, or that there is any credible evidence upon which it could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he were to return to India.[13]
[5] At [68]; CB 114.5-6.
[6] At [69]; CB 114.7.
[7] At [69]; CB 114.8.
[8] At [69]; CB 114.9-10.
[9] At [69]; CB 114.10-115.1.
[10] At [69]; CB 115.1.
[11] At [70]; CB 115.2.
[12] At [71]; CB 115.3.
[13] At [71]; CB 115.4.
These proceedings began with a show cause application filed on 19 February 2010. That has since been augmented by an amended application filed on 10 May 2010. The grounds of the original applications are:
1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the majority of High Court in SAAP.
2. That the decision of the Refugee [R]eview Tribunal was [a]ffected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims;
3. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular of Grounds
a. The [T]ribunal did not consider the applicant who had been under immense and intimidating pressure from Congress party thug Manish and harassed because of the applicant activities and membership with BJP party.
b. In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future, Manish will seriously harm him.
4. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
5. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
6. The [Tribunal] member emphasised on some irrelevant questions at the hearing and ignored our profession and political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
The ground in the amended application is:
The Tribunal constructively failed to exercise its jurisdiction:
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of these documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the document. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
The application as amended is supported by the applicant’s affidavit filed on 19 February 2010. I accept paragraph 1 of that affidavit as evidence and paragraph 2 as a submission. I also have before me as evidence the court book filed on 12 March 2010. I made orders for the filing of outlines of submissions and list of authorities in this case on 6 April 2010. Only the Minister has complied with that direction.
The applicant appeared in person at today’s hearing and asked for an adjournment. He told me that for approximately seven months he has been suffering from a medical condition which might, hypothetically, involve a cancerous growth in his throat. The physical symptom I am told is a lump. He told me that he has had a biopsy done which was inconclusive. His doctor has prescribed medication to provide relief from pain and acidity, and he takes one tablet at night. He told me that he had been to see his GP last week. I asked the applicant whether he had any medical certificate or statement from his doctor concerning his condition. He did not. His appearance did not appear to me to be reflective of a person who is obviously unwell and the applicant was able to converse normally through the interpreter. Having regard to my own observations of the applicant and the lack of any medical evidence about his condition, I declined to grant the adjournment requested.
The applicant made oral submissions in support of his application. Those submissions all went to the merits of the Tribunal decision. I reminded the applicant of the grounds set out in his original application and amended application and invited him to provide details on those grounds which were partly unparticularised. He was not able to do so.
The Minister’s submissions deal comprehensively with the grounds in the original application. I agree with those submissions.
Ground 1
The applicant claims that the Tribunal breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). There are no particulars to this ground to identify any information which is said to engage the operation of that provision. The obligation in s.424A(1) did not arise because, in affirming the delegate's decision, the Tribunal relied on:
a)information given by the applicant to the Tribunal for the purposes of the review. This information falls within the exception set out at s.424A(3)(b);
b)information given in writing by the applicant to the delegate in connection with his protection visa application. That information falls within the exception set out at s.424A(3)(ba);
c)information given orally by the applicant to the delegate in connection with his protection visa application. There is no evidence that the Tribunal considered that that information would be the reason, or a part of the reason, for affirming the delegate's decision: see Minister for Immigration v SZLFX (2009) 238 CLR 507 at [24]; and
d)its subjective appraisals, thought processes and determinations in relation to the applicant's evidence. These do not attract any obligation under s.424A(1): SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18].
Ground 2
The applicant claims that the Tribunal failed to take into account certain relevant considerations or "integers" of his claims. There are no particulars to this ground to identify any integer of the applicant's claims which the Tribunal is said to have overlooked. The applicant has failed to identify a particular integer of his claims and then to prove that the Tribunal did not address that integer either specifically, by making findings of greater generality or by rejecting the factual premise upon which the claim rests: see Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47].
Ground 3
The applicant claims that the Tribunal failed to carry out its review function or exercise its jurisdiction. In the particulars to this ground, the applicant claims that the Tribunal did not consider his claims that he had been under immense and intimidating pressure from Manish and that Manish would seriously harm him if he were to return to India in the near future. The Tribunal’s reasons establish that the Tribunal did in fact consider these claims and made findings in relation to them.[14] The Tribunal accepted the applicant's claim that he had been assaulted by Manish on one occasion. However, it did not accept that Manish was a threat to the applicant after that incident or that Manish had harassed the applicant following that incident as claimed. Further, the Tribunal found that the applicant would have access to effective state protection and that there was no real chance that Manish would seriously harm the applicant in the reasonably foreseeable future.[15]
[14] At [69]; CB 114.6-115.1.
[15] At [70]-[71]; CB 115.2 - 4.
Ground 4
The applicant claims that the Tribunal exceeded its jurisdiction, constructively failed to exercise its jurisdiction or denied him procedural fairness by failing to investigate his claims. It is only in rare circumstances that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, may constitute a failure to review the delegate's decision and thereby give rise to a constructive failure to exercise jurisdiction: Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25] - [26]. There are no particulars to this ground to identify any enquiry which the Tribunal is said to have been required to make. Further, there is no evidence that the applicant requested that the Tribunal make any particular enquiry.
Ground 5
The applicant takes issue with the Tribunal's use of country information. The Minister submits that this ground cannot be made out because the Tribunal did not rely on any country information in its decision. I agree. In any event, the selection of country information and the weight that the Tribunal gives to it is a matter for the Tribunal, as part of its fact-finding function: NAHI v Minister for Immigration [2004] FCAFC 10 at [11].
Ground 6
The applicant claims that the Tribunal emphasised irrelevant questions at the hearing and ignored relevant material. There are no particulars to this ground to identify any irrelevant questions said to have been asked by the Tribunal, or any relevant material which the Tribunal is said to have ignored.
The amended application places stress upon an alleged failure by the Tribunal to constructively exercise its jurisdiction in relation to the consideration of documents which are said corroborate the applicant’s claims. I accept the Minister’s submission that the Tribunal’s reasons demonstrate that it not only took into account documents submitted by the applicant to the Minister’s department and to the Tribunal but generally found those documents to support factual claims made by the applicant. What the documents did not do was to support the applicant’s claim that he had a well founded fear of serious future harm in India for a Convention reason in respect of which adequate state protection was not available from the Indian authorities.
I see no substance in the grounds in the amended application or in the original application. I am not able to discern from my own reading of the court book any jurisdictional error by the Tribunal.
It follows that the Tribunal decision is a privative clause decision and accordingly, the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks costs fixed in the sum of $4,000. The applicant did not wish to be heard on costs. Scale costs would be $5,865. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2010
4
1