SZOMS v Minister for Immigration
[2010] FMCA 778
•28 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 778 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.424A of the Migration Act 1958 and did not explain why the applicant could relocate within India. |
| Migration Act 1958, ss.424AA, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 |
| Applicant: | SZOMS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1401 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 September 2010 |
| Date of Last Submission: | 28 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1401 of 2010
| SZOMS |
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 to fear persecution.
After his arrival in Australia on 19 August 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 28 January 2010 and notified to the applicant by letter dated 4 February 2010. 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.
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 – 8 of the Tribunal’s decision.
In a written statement attached to his application form, the applicant made the following claims:
a)his family, who are Muslims, were supporters of the Indian National Congress (“Congress”). His mother was a charpanji (a council member) in their village. She lost this position in 2004 when the CPI-M, under the leadership of a Mr Yadav, won the election;
b)the applicant campaigned for the Congress party during the 2004 elections and was threatened by Mr Yadav and some “Jat thugs” as a result. He was beaten “mercilessly” in front of his family members;
c)on 13 October 2008 a local Jat was killed by unknown persons, causing a communal riot in the area. Mr Yadav took advantage of the situation to attack Muslims and the applicant’s family. When the applicant heard that local Jats were destroying Muslim homes, he became fearful and went “on the run”. While he was “on the run” his house was attacked and ransacked; and
d)the Indian government is dominated by radical Hindu parties and Muslims in India are commonly at risk of detention, interrogation and torture. His family has suffered greatly.
In support of his application the applicant provided to the Minister’s department a copy of his Indian Youth Congress card, a copy of a Certificate of Election indicating that his mother was elected as a charpanji in her village in 2000 and a copy of a report concerning riots in his village following the murder of a youth by unknown assailants.
The applicant was interviewed by a delegate of the Minister on 7 December 2009. At the interview he made the following claims:
a)in 2000 his mother stood as a candidate for the Congress party in village elections and was elected as a charpanji. He assisted his mother in her campaign;
b)during the 2004 elections the applicant actively campaigned for the Congress party. The CPI-M candidate, Mr Yadav, wanted him to stop his activities and threatened him in front of his family. He also harassed the applicant and his mother and tried to incite people against them;
c)he was assaulted in 2004 and 2008, the latter following the murder of a Jat. Mr Yadav tried to implicate him in the murder so the applicant moved to Jaipur in October 2008 where he hid for a long time. He had no problems in Jaipur although Mr Yadav tried to search for him; and
d)he tried to go to Jaipur, Delhi and Mumbai but because he is a Muslim people always view him with suspicion. There is nowhere in India that he can relocate to.
At a hearing before the Tribunal on 14 May 2010 the applicant made the following additional claims:
a)he became a member of the Congress’s student wing while at college. Afterwards, he joined the Indian Youth Congress and was involved in various activities for the party;
b)his mother was a charpanji or the head of a panchayat (a council representing a group of villages in a district) and he provided her with assistance in performing this role. She held this position from 2000 to 2004;
c)after “ascending to power”, Mr Yadav started to harass him in order to stop him from campaigning for the Congress. However, he was not fearful of Mr Yadav because the latter did not get a chance to do anything to him. He had no real concerns about Mr Yadav until October 2008 when Mr Yadav tried to incite communal violence;
d)the applicant was targeted during the October 2008 riots because he was a Muslim and a political leader. A group of people came to his house, broke down the door and called his name but he managed to escape to a neighbour’s house. The group told his wife and parents that they would kill him if they caught him. That same evening, the applicant went to Jaipur;
e)prior to this incident, he experienced some conflicts and threats but nothing serious. For example, in 2005 Mr Yadav sent some people to beat him but he was with other party members and managed to fend off the attackers;
f)of the 2000 people in his village, only 400 are Muslims; the rest are Hindus; and
g)he approached the police for assistance but they knew Mr Yadav and tried to implicate the applicant in the October 2008 incident. They had also received bribes from unknown people.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 accepted that the applicant was a member and an active supporter of the Congress party in his locality. It also accepted that his mother served as a charpanji in the panchayat from 2000 to 2004 and that he provided her with some assistance during this time. However, the Tribunal found that the applicant was not a reliable and credible witness and did not accept that he suffered harm in India as a result of these factors;
b)the Tribunal found that the applicant’s evidence to the department and to it concerning the events of October 2008 was inconsistent. In his written statement the applicant claimed that he had been beaten “mercilessly” by Mr Yadav and some thugs in front of his family. He then said at the interview with the delegate that he had been assaulted on two occasions, first in 2004 and then in 2008 following the murder of a Jat. However, at the hearing before the Tribunal he claimed that Mr Yadav was never able to harm him. In particular, he claimed that he was not harmed during the October 2008 incident as he managed to escape to Jaipur;
c)the Tribunal found that the claims on which the applicant gave completely inconsistent evidence were central to his claimed fear of persecution and their evident lack of reliability cast significant doubt on his truthfulness as a witness. The Tribunal found that the totality of the applicant’s evidence demonstrated a propensity to tailor evidence in a manner which achieved his own purpose. Consequently, the Tribunal found that the applicant was not a credible witness and did not accept that he was ever targeted by Mr Yadav, members and supporters of the CPI-M or anyone else for reasons of his political opinion or his mother’s previous position as a charpanji. It also did not accept that Mr Yadav had exploited communal tensions in the village to incite violence against the applicant in October 2008; and
d)the Tribunal accepted that the imbalance between the number of Muslims and Hindus in the applicant’s village, combined with other events, might give rise to communal conflicts and that this might be of concern to him. However, the Tribunal was of the view, having regard to independent country information, that it would be reasonable for the applicant to relocate within India. The Tribunal also noted in this connection that the applicant was young, educated and a successful businessman in India and had proven his resilience and capacity to survive in an alien environment as he had been doing in Australia. In the circumstances, the Tribunal was satisfied that it would be reasonable and practicable for him to relocate safely to a different part of India.
Proceedings in this Court
The application commencing these proceedings pleaded the following ground:
(1)Although RRT put all the inconsistencies during hearing, the RRT did not ask me in writing to make comments on any inconsistent evidencey [sic] after the hearing. The RRT said I could live other part of India but it did not say how, why I could live in other part of India.
The first element of the allegation made by the applicant relates to an alleged failure by the Tribunal to comply with s.424A of the Act. That section 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.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. …
It must first be noted that the obligation to notify information to an applicant pursuant to s.424A is limited to material of a factual nature and does not include the Tribunal’s opinions or conclusions on the evidence, such as that some information is inconsistent with other information. However, in this case, the Tribunal did notify the applicant of certain information which it ultimately concluded was inconsistent. As the applicant has indicated in his application, this notification was made orally at the Tribunal hearing. Such oral notifications are provided for by s.424AA and once the Tribunal made the relevant notification orally it had no obligation to request a further comment in writing. Section 424A(2A) makes this clear.
In the circumstances of this case, such obligation as the Tribunal had to notify information to the applicant and to invite his comments on it was satisfied by the Tribunal’s oral notification at the hearing pursuant to s.424AA. For this reason, the first element of the ground pleaded in the application does not disclose jurisdictional error on the part of the Tribunal.
The second element of the allegation made in the application is concerned with the question of relocation. The applicant alleges that the Tribunal did not say how or why he could live somewhere in India other than in his home village. What the Tribunal found was that it would be reasonable and practicable for the applicant to relocate to a different part of India. Importantly, that finding was made in reference to what the Tribunal described as “general security concerns or fears arising out of future conflicts between Hindus and Muslims in the area,” not in relation to the applicant’s alleged fear of harm associated with his political activities, which the Tribunal rejected as not credible.
In this connection, it should be noted that the applicant did not articulate a claim or fear of persecution based on his religion. His references to religion were in the context of his allegations that Mr Yadav took opportunistic advantage of the fact that the applicant is a Muslim to incite communal unrest for political ends. Consequently, the Tribunal’s reference to the reasonableness and practicability of relocation is, strictly speaking, irrelevant both to its decision on that claim, which the applicant did make, and also to these review proceedings.
But in any event, the Tribunal turned its mind to the correct question, namely, whether it was reasonable and practicable for the applicant to relocate within India. During the hearing the applicant had said that he could not relocate because moving to a different area was very difficult and as a Muslim he would not be able to find accommodation because of people’s anti-Muslim mentality. He also said that he would not be able to continue his political activities in a place where no one knew him. The Tribunal addressed these concerns in its discussion of relocation in para.67 of its decision. That is to say, it said how and why it was reasonable and practicable for the applicant to relocate. By doing so, the Tribunal considered the question of relocation in the correct way: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 438-439 [123]-[124].
As a result, the second element of the allegation made in the application does not disclose error on the Tribunal’s part.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 October 2010
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