SZQFV v Minister for Immigration - [2011] FMCA 927

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 927

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425

Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24
SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14; [2007] FCA 1592
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
WAGJv Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277

First Applicant:

SZQFV

Second Applicant:

SZQFW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 976 of 2011

Judgment of:

Barnes FM

Hearing date:

7 November 2011

Delivered at:

Sydney

Delivered on:

7 November 2011

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 976 of 2011

SZQFV

First Applicant

SZQFW

Second 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 18 April 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are citizens of India who arrived in Australia in May 2010 and applied for protection visas in June 2010. Only the first applicant (SZQFV), who is referred to for convenience as the applicant, made substantive claims for protection. The second applicant, his wife was included in the application as a member of his family unit. The application was refused and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing at which he claimed to fear persecution in India as he had been targeted by a gang of “local thugs” who identified him as a leader a group in opposition to them.
It is apparent from the Tribunal’s account of the hearing in its reasons for decision (the only evidence before the court of what occurred in that hearing) that the Tribunal raised with the applicant its concerns about the fact that his claims at the hearing differed from the claims in his written statement in support of his protection-visa application.
The applicant explained that his written statement was translated by a student. According to the Tribunal he “readily resiled from much of what was contained in [his] statement”. His initial claims suggested that he was a political activist and that it was for that reason that he was targeted for persecution in the form of extortion. However the Tribunal found that the applicant’s account at the Tribunal hearing was consistent with what he had told the delegate at the Departmental interview. It preferred his oral evidence to his written statement of claims and placed no weight on inconsistencies between the two. The Tribunal found that “the applicant appeared scrupulous about ensuring the Tribunal had an accurate understanding of his claims” and that he “readily conceded” a number of points adverse to those claims. He had played down the political aspects of his claim and emphasised that he had “no interest in politics other than the possibility it offered him of securing the protection of powerful people”. The Tribunal found that the applicant also “readily acknowledged” that although problems he experienced resurfaced after initial attempts to relocate elsewhere in India, he experienced no further problems when he again moved to another place, and seemed to have lived and worked there for four and a half years “without undue difficulty”. It also had regard to the fact that he had disclosed that when he did eventually have problems after he had returned to his home area, they seemed to stop after his political patron spoke with the extortionists and he heard no more from them before leaving for Australia.
The Tribunal accepted that the applicant’s account at the hearing was “an accurate one”. In particular, it accepted that he had been “targeted by a gang of thugs extorting money from traders at a market complex” in his home town, that he had “become leader of a local trading cooperative and encouraged [the traders] to resist the extortion practices”, that the extortionists had “identified [him] as the leader opposing them, beaten up his employees, and robbed his business”. The Tribunal also accepted the police “took little if any action”, that the applicant relocated first to one place and subsequently (after the extortionists tracked him down there) to another place.
The Tribunal also accepted that “some 5-6 years later, approximately one year after the applicant had returned to [his home town], the extortionists again targeted the applicant, having located and invaded his home in a criminal attack”.
Despite the fact that the Tribunal accepted the “persistence of the people involved in these attacks” and the longstanding nature of such attacks it found that while there was a chance that the applicant would encounter further serious harm amounting to persecution, there was no Convention nexus in the sense required under the Refugees Convention and the Migration Act 1958 (Cth).
In reaching that conclusion the Tribunal had regard to the fact that the applicant’s claims as clarified before the Department and at the Tribunal hearing suggested only a “tenuous link to the Convention ground of political opinion”. It addressed the applicant’s claim that he thought that the extortionists “had links to the BJP, and that one of them may have become a BJP candidate”, which it saw as a “surprising suggestion” that was “nonetheless borne out by recent country information”. However it had regard to the fact that the targeting was said to have started in 2002 when the applicant first stood up to the extortionists, well before he joined the Congress Party in 2007 and to the fact that as the applicant had acknowledged, that he had “joined the Congress in the hope of obtaining protection rather than for political reasons”.
The Tribunal also acknowledged that “the mere fact an act was criminal did not mean it cannot be inflicted for a Convention reason”. However it found that “the evidence of the applicant does not suggest to the Tribunal that there was any political motivation to the actions of the extortionists, less still that there was any political motivation” such as to constitute the essential and significant reason for the harm feared as required by s.91R(1)(a) of the Migration Act if the harm was to amount to persecution for a Convention reason. The Tribunal concluded that it was not satisfied on the basis of the claims and evidence before it that in the event that the applicant returned to India in the reasonably foreseeable future he faced a real chance of serious harm capable of amounting to persecution for the purposes of s.91R of the Act for reason of his political opinion, actual or imputed, or for any other Convention reason.
The Tribunal went on to find that “in any event” if the applicant wished to “avoid a recurrence of the non-Convention related serious harm he has experienced in [his home town] it is reasonably open for him to safely relocate within India, to a place such as [a named town] where on his own evidence, he has safely relocated once before for some 4 ½ years”.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations and that it followed that the other applicant was not a member of the family unit of such person.

It affirmed the decision not to grant the applicants protection visas.
The applicants sought review by application filed in this court on 16 May 2011. There are five grounds in the application. The applicants did not file written submissions. The first applicant attended the hearing and was given the opportunity to elaborate on these grounds.
I note that insofar as the applicant appeared to express a concern that the Tribunal may not have believed his oral evidence, that was not the case. As set out above, the Tribunal accepted the applicant’s account of events in India it at the Tribunal hearing as an accurate one. The applicant failed because of the absence of a Convention reason, not because the Tribunal did not believe or accept his claims about what he said had occurred in India. Moreover, insofar as the applicant referred to the fact that the Tribunal told him at the hearing that he had given a different version of events in his written statement, the Tribunal placed no weight on inconsistencies between his oral and written statements.
The applicant also appeared to suggest in oral submissions that the Tribunal could or should have investigated where he lived in India and his circumstances there. However this is not a case in which it has been established that the Tribunal was under any obligation to investigate, as discussed further in relation to ground five in the application.
Ground one in the application is that the Tribunal “denied the Applicants procedural fairness by reaching adverse conclusions that their claim were (sic) implausible, being conclusions that not obviously open on the known material, without giving the Applicants the opportunity to be heard in respect of those matters”.
As set out above, the Tribunal did not reach any conclusion that the applicant’s claims were implausible. Moreover it has not been established that the Tribunal failed to comply with s.425 of the Migration Act. It invited both the first and second applicants to the Tribunal hearing. It has not been established that the Tribunal failed to raise with the applicant any dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63.

In particular it raised with him the issue of a Convention nexus to the harm claimed.
Insofar as this might be taken to be a contention that the Tribunal was under an obligation to put its provisional reasoning to the applicants, no such obligation arises either under s.425 or s.424A of the Act. The Tribunal’s decision was based on the applicant’s own evidence and it has not been established that there was any information subject to the disclosure obligation in s.424A(1) of the Act. Ground 1 is not made out.
The second ground is that the “Tribunal failed to considered properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which was a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India” (sic).
Section 91R(2)(a) provides that (without limiting what is serious harm for the purposes of paragraph 91(1)(b) which requires persecution to involve serious harm to the person) a threat to a person’s life or liberty is an instance of serious harm.
The applicant appears to take issue with the Tribunal’s consideration of whether it was reasonable for the applicants to relocate within India. The Tribunal accepted that the first applicant had been targeted by a gang of thugs extorting money from traders and that such attacks amounted to serious harm for the purposes of s.91R(2) of the Act. However the Tribunal concluded that it was not satisfied there was any Convention nexus as it was not satisfied there was any political motivation to the actions or that such a motivation constituted the essential and significant reason for the harm feared. Having reached such a conclusion it was not necessary for the Tribunal to consider whether it was practicable for the applicants to relocate to avoid persecutory harm for a Convention reason in their local area. (See SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40).
While the Tribunal did address relocation, it did not rely on the reasonableness of relocation as an alternative basis for its conclusions, but rather made an observation that if the applicant wished to “avoid a recurrence of non-Convention-related serious harm” it was reasonably open for him to safely relocate. Given that this observation was restricted to addressing the avoidance of non-Convention-related serious harm, it cannot be seen as an alternative basis for the Tribunal to refuse the applicants protection visas.
If I am wrong in that respect and the Tribunal’s consideration of relocation should be seen as an alternative basis for its decision, as submitted by the first respondent the Tribunal recorded the issues and obstacles to relocation raised by the applicant in the course of the hearing. In particular that his children and family were not able to “adapt themselves” in the named town he had lived in for some four-and-a-half years as his extended family lived in his home town and that they had “no relatives elsewhere and they would be on their own”. It put to him that as he had already relocated with his family once before and re-established his business in that other town it did not appear unreasonable to expect him to do the same if he faced further threats in his home town. The applicant replied they had “only relocated because they had no choice and that his children had always complained and the situation remained tense”, and because of all that had happened he was “still really frightened as far as [his home town] was concerned”. In its findings and reasons the Tribunal had regard to the fact that the applicant acknowledged that he had experienced “no further problems” when he moved to the second town and seemed to have lived and worked there for four-and-a-half years “without undue difficulty”. Even if issue could be taken with the Tribunal’s consideration of the reasonableness of relocation and whether it sufficiently considered obstacles to relocation there is nonetheless an independent basis for the decision, not affected by any error in the Tribunal’s conclusion about the absence of a Convention reason such that the decision is not affected by jurisdictional error or it would be proper to refuse relief in the manner considered by Allsop J in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 (also see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24; Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 and VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965). Ground two is not made out.
The third ground in the application is that the “Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Migration Act”. No particulars are provided for this generally expressed ground. Relevantly, in circumstances where the Tribunal was unable to reach the requisite level of satisfaction that the applicant met the criteria for the class of visa for which he applied he could not be granted the visa (see ss.36 and 65 of the Migration Act). The Tribunal is not required to accept uncritically any or all of the applicant’s claims or to find evidence to disprove his claims. The Tribunal’s findings were open to it on the evidence before it for the reasons that it gave. The applicant has not established and nor is there anything in the material before the court to raise any suggestion of any failure by the Tribunal to comply with the statutory requirements in Division 4 of Part 7 of the Migration Act. Ground three is not made out.
Ground four is that the “Tribunal’s decision was unjust and was made without taking into account the full gravity applicants circumstances and the consequence of the claim” (sic). Insofar as the applicant seeks merits review, merits review is not available in this court. The Tribunal in essence accepted the applicant’s claims about past events, including his claim that he might suffer harm if he returned to India, but found that the harm had no Convention nexus. Such a finding was reasonably open to it on the evidence before it.
The general contention that the decision was unjust does not establish jurisdictional error or point to any arguable error. As the High Court noted in SZBEL at [25], “what is required by procedural fairness is fair hearing, not a fair outcome.” There is nothing in the evidence before the court to suggest that the applicant received anything other than a fair hearing. Insofar as the applicant may be contending that the Tribunal failed to have regard to integers of his claims, such a contention is not made out. Ground four is not established.
Finally, ground five is that the Tribunal “failed to investigate the applicants claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated 19 April 2011 was effected by actual bias” (sic). Insofar as this is a contention that the Tribunal erred in failing to investigate the applicant’s claims, the Tribunal is under no general duty to inquire (see the Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [22] – [22], SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14; [2007] FCA 1592 at 46; and WAGJv Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [24]). It has not been established that in the circumstances the Tribunal was obliged to make an obvious inquiry about a critical fact the existence of which was easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 and SZMJM v Minister for Immigration and Citizenship [2010] FCA 309).
Neither actual or apprehended bias is established on the material before the court. Such claims must be clearly made and distinctly proved. (See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). It is a rare case in which such an allegation will be made out by reference to the decision record alone. This is not such a case. There is no evidence before the court to support any allegation that the Tribunal’s decision was affected by bias or to support an allegation of apprehended bias considered from the perspective of the appropriately informed, reasonable lay observer. This ground is not made out.
Accordingly the application should be dismissed. Before I make the orders I will hear submissions in relation to costs.

The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the first respondent. The applicant told the court that he had no money, even for transport. That is not a reason for de0parting from the general principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
The Minister sought the sum of $4,500 on the basis of the costs expended in the work in preparation of this case, including preparation of the supplementary Court Book, which I note however had to be prepared, because the Departmental file was unable to be located when the original Court Book was prepared. Doing as best I can on the limited material before me and having regard to the nature of this case I am of the view that a reasonable and appropriate amount for costs is the sum of $4,000.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Date: 25 November 2011