SZOQS v Minister for Immigration
[2011] FMCA 212
•22 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOQS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 212 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 425 |
| Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZOQS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2111 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2111 of 2010
| SZOQS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 24 August 2010. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in early 2007 as the holder of a student visa. His then current student visa was cancelled on 13 September 2007. Thereafter he held a series of bridging visas, including during a time when he had proceedings in the Federal Court in relation to the cancellation of his student visa.
The applicant lodged his application for a protection visa in January 2010. His application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
In its reasons for decision the Tribunal summarised the applicant’s claims made in his protection visa application, at a Departmental interview and at the Tribunal hearing. In essence, the applicant claimed to fear persecution in India because he is a Sikh who married a Hindu woman whose family opposed the marriage. He claimed that his wife converted to Sikhism at the time of the marriage. The applicant claimed that he first considered marriage in 2006; his wife’s parents had rung him in 2006 and 2007 telling him to stay away from her (as did his wife’s brother); and they married in 2007.
He claimed to fear in particular that if he returned to India, his wife’s brother would threaten him or harm him because of his marriage. He also claimed to fear that his wife’s family would consider he had not made a success of his life (which was the condition of their marriage) and that they would pressure his wife to divorce him.
The Tribunal accepted that the applicant was Sikh and his wife was Hindu prior to their marriage, that they married in a Sikh Temple and his wife converted and that this upset her parents and brother. It also accepted that the general attitude of society in India towards inter-religious married couples was “not favourable”. However the Tribunal found that the independent evidence before it indicated that the treatment of married couples with different religious backgrounds depended on their location and social levels.
While accepting that the wife’s parents were unhappy about their daughter marrying a Sikh, the Tribunal had regard to the fact that the wife’s parents and sisters had attended the wedding, the parents had made some of the arrangements for the wedding and the parents and sisters had maintained a relationship with the applicant’s wife since the marriage. In addition, they had allowed their daughter to come to Australia to study and to live with the applicant. She spoke to her sisters regularly and to her parents from time to time. The Tribunal was of the view that the parents of the applicant’s wife accepted the marriage.
The Tribunal also addressed the applicant’s claim that his parents-in-law would disapprove of him if he returned to India because he had failed his course. While the Tribunal accepted that his parents-in-law might be disappointed, it had regard to the fact that the applicant was not claiming that his parents-in-law would harm him if he returned to India, but that his only fear of harm was from his wife’s brother. The Tribunal was satisfied that the applicant would not be subjected to serious harm by his wife’s parents because of differences about religion or caste or for any Convention reason if he returned to India.
The Tribunal accepted that the applicant’s wife’s brother did not attend the wedding and had only spoken to the applicant in one short phone call after he returned to Australia in April 2007. It also accepted that the brother disapproved of the marriage. However the Tribunal was not satisfied that the applicant had experienced serious harm as defined in the Migration Act 1958 (Cth) (the Act) or that he would be persecuted if he returned to India.
The Tribunal referred to the requirement under the Act that persecution involve serious harm (see s.91R(1) and (2) of the Act) and to the applicant’s evidence that he had not had contact with his brother-in-law for three years and that when the brother-in-law came to Australia he did not contact the applicant. The Tribunal found that the brother-in-law’s failure to contact the applicant’s wife and his refusal to attend the wedding indicated that the brother-in-law was actively avoiding the applicant and also the applicant’s wife.
The Tribunal considered the applicant’s fear that his brother-in-law would target him when he returned to India, but was of the view that this was speculative and not consistent with the efforts the families had made to maintain some communication. It had regard to the estrangement from the brother but also to the ongoing relationship between the families and financial assistance provided to the applicant’s wife by the applicant’s grandfather to enable her to come to Australia to study. In all the circumstances the Tribunal was of the view that the estrangement with the brother, while upsetting, did not amount to serious harm and was not likely to do so in the foreseeable future.
Considering the applicant’s claims individually and cumulatively the Tribunal found that there was no real chance of the applicant facing harm for a Convention reason if he returned to India.
The applicant sought review by application filed in this court on 27 September 2010. He filed an accompanying affidavit claiming to fear harm in India. Insofar as the applicant claimed in his affidavit, his application and in submissions today to fear harm in India, as I endeavoured to explain to him, merits review is not available in this court.
The first ground in the application for review is of that nature. It asks the court to “look at [his] case again”. Similarly ground two goes on to state:
I am having a serious harm in my country that is my appeal to court Please look at my case again please understand my situation and allow me to stay in Australia
As the first respondent submitted, the applicant’s assertion that he will suffer serious harm in India seeks to cavil with the factual findings of the Tribunal, in particular the Tribunal’s finding that the applicant’s claim to fear harm should he return to India was speculative and inconsistent with the rest of his claims. It is well established that the court cannot review the merits of the Tribunal decision. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51). These contentions do not establish jurisdictional error on the part of the Tribunal.
It is convenient to note at this point that in oral submissions today the applicant also claimed that his family had moved from India to Canada, that he was now by himself and that this was another reason he did not feel safe in India. Again, this is not a re-hearing and that is not a matter that goes to show any jurisdictional error on the part of the Tribunal.
Under the heading “Grounds of the Application” in the application for review, the applicant claimed that the Tribunal “did not gave me answer of question that I can’t stay anywhere else” and that the Tribunal member asked him “Can you stay anywhere else in your country?”, that he said “no” and that she “didn’t gave any answer of this question (sic)”.
In oral submissions, the applicant repeated this claim and took issue with the fact that the Tribunal member did not ask him any further questions as to why he could not move elsewhere in India and what reason was behind this.
As indicated, the only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. Assuming that the questioning was as suggested by the applicant, the fact that the Tribunal may have asked the applicant a question about whether he could move elsewhere in India and not pursued that issue with further questions is not such as to establish jurisdictional error. This is not a case in which the issue of relocation had to be addressed by the Tribunal in its findings and reasons. The Tribunal rejected the applicant’s claims because it was not satisfied that his concerns about his brother-in-law amounted to serious harm within s.91R of the Act and was not satisfied that he had a well-founded fear of harm on this basis should he return to India. A finding on the issue of relocation would only have become relevant or necessary if the Tribunal had found that there was a well-founded fear of persecution for a Convention reason in the applicant’s local area in India. It made no such finding.
In these circumstances, the Tribunal did not fall into jurisdictional error, either in the manner in which it was said to have questioned the applicant or in its findings and reasons.
Moreover, the material before the court in relation to the conduct of the Tribunal hearing is not such as to give rise to any concern that the Tribunal failed to raise with the applicant dispositive issues under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63). Nor is there anything in the Tribunal’s account of the Tribunal hearing to give rise to any concern as to jurisdictional error.
Contrary to the applicant’s contentions, the Tribunal was not obliged to ask him questions in relation to an issue that was not of any relevance in light of the findings to which it came in the circumstances of this case. No jurisdictional error is established on the basis contended for by the applicant and in these circumstances the application should be dismissed.
RECORDED : NOT TRANSCRIBED
As I was delivering judgment the applicant indicated that he wished to raise another issue, being the fact that he had not had an interpreter for the purposes of the Tribunal hearing. In such circumstances, it would normally be necessary to consider strictly whether an applicant could raise a fresh issue when judgment was partially delivered. What the applicant said in no way addressed this issue or established that there would be any basis to give him leave to do so.
It is appropriate to address the absence of merit in the issues that he raised although this is not a case in which leave to raise a fresh issue should be granted. In essence, this is because, as the applicant quite openly conceded, it was his choice not to ask for an interpreter in his first language at the Tribunal hearing. It is apparent from the material before the court that when invited to the hearing the applicant was informed that if requested to do so the Tribunal would arrange an interpreter for him and that if the applicant was not satisfied with interpreting, he should tell the Tribunal member and that if there was any difficulty hearing, the Tribunal should be advised.
However the applicant, who had indicated in his protection visa application that English was one of the languages (albeit the third language) which he spoke, read and wrote and who had been a student in Australia, indicated in his Response to Hearing Invitation Form that he did not require an interpreter for the Tribunal hearing.
Furthermore, there is no suggestion from the applicant and nothing in the material before the court to indicate that during the hearing any problem of comprehension arose or that in the hearing, or indeed thereafter, the applicant raised any concern whatsoever with the Tribunal about his now claimed lack of ability to understand the questions put to him at the Tribunal hearing.
Moreover, this is not a case in which the applicant’s claims were rejected because the Tribunal was not satisfied of his credibility based on anything that arose out of the hearing or in which any question of fine interpretation of answers given by the applicant arose.
The fact that in retrospect and having had the benefit of an interpreter for these proceedings the applicant has decided that it might have been preferable to have an interpreter for the Tribunal hearing does not establish a lack of procedural fairness, let alone any jurisdictional error on the part of the Tribunal, whether consisting of a failure to comply with s.425 of the Act or otherwise.
In such circumstances, having regard to the manner in which and time at which this matter is raised and the nature of the claim, in the absence of any merit it is not such that I am persuaded that leave should be granted at this stage of the proceedings to raise a fresh ground of this nature.
The applicant was given the opportunity to respond to the respondent’s application for costs and had nothing to say in that respect. The unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 April 2011
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