SZQRD v Minister for Immigration - [2012] FMCA 163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 163

MIGRATION – Review of decision of Refugee Review Tribunal – application for protection visa – grounds of religion and political opinion – relocation – whether Tribunal considered affect of relocation – whether Tribunal considered ground of religion – jurisdiction of Tribunal – whether Tribunal should accord applicants benefit of the doubt – provision of country information – s.424A of Migration Act 1958 (Cth) – whether Tribunal failed to exercise its jurisdiction – bias – merits review – where second, third and fourth applicants had no personal claims for refugee status – where all applicants invited to attend hearing – whether Tribunal did not give second applicant a proper opportunity to be heard – where third and fourth applicants under age of eighteen – where parents spoke on behalf of children – where no evidence that children not given opportunity to be heard – whether breach of s.425 of Act.

Migration Act 1958 (Cth), ss.36(2), 65, 424A, 424A(3), 425

Minister for Immigration & Anor v Rajalingam (1999) 93 FCR 220
Magyari v Minister for Immigration& Anor (1997) 50 ALD 341
Minister for Immigration & Anor v Abdi (1999) 87 FCR 280
Minister for Immigration & Anor v Singh (2002) 209 CLR 533
SZHIS v Minister for Immigration & Anor [2006] FCA 1641
SZLFS v Minister for Immigration [2009] FCA 75
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1
SZLSM v Minister for Immigration and Citizenship (2009) 196 FCR 539

First Applicant:

SZQRD

Second Applicant:

SZQRE

Third Applicant:

SZQRF

Fourth Applicant:

SZQRG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2136 of 2011

Judgment of:

Raphael FM

Hearing date:

24 February 2012

Date of Last Submission:

24 February 2012

Delivered at:

Sydney

Delivered on:

24 February 2012

REPRESENTATION

For the Applicants:

In person

Solicitors for the Respondent:

DLA Piper

ORDERS

Application dismissed.
First and Second Applicants pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2136 of 2011

SZQRD

First Applicant

SZQRE

Second Applicant

SZQRF

Third Applicant

SZQRG

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There are four applicants in this case, all of whom are citizens of India. They are a husband, a wife, and two children. In the applications for protection (Class XA) visas that were completed by this family, the husband completed form C, which is described as, “an application for an applicant who wishes to submit their own claims to be a refugee.” [CB 11 - 26]. The wife completed form D. That is described as an application for a member of the family unit:
“This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application. If you DO have your own claims to be a refugee, complete a Part C instead.” [CB 27 - 33]
The daughter also completed form D. When I say completed, her signature appears at the bottom of the form, indicating that she had read or had explained to her information provided by the Australian Government on Australian Society and Values [CB 38], although of course she was not required to sign that because she was under the age of 18 at the time. On the other hand at [CB 42] the form has been signed not by the daughter, but by the husband, the principal applicant, so far as I can see. There was also completed a form D on the part of the son. He too signed the Australian Values Statement [CB 46] and signed the statutory declaration at [CB 48]. However, it was his father who signed the bottom of the form at [CB 50].
These applicants arrived in Australia on 25 December 2010 and applied to the Department of Immigration and Citizenship for protection [Class XA] visas on 4 February 2011. On 20 April 2011 a delegate of the Minister refused to grant protection visas and the applicants applied to the Refugee Review Tribunal for review of that decision on 16 May 2011. The Refugee Review Tribunal wrote to the applicants on 10 June 2011 inviting them to appear at a hearing to take place on 7 July 2011. [CB 97] The hearing record [CB 99] indicates that the husband, described there as the primary review applicant appeared, as did the daughter, son, and wife. They were assisted at the hearing by a Guruajati interpreter. The hearing record indicates that the husband and the wife both took an oath upon the Koran. On 24 August 2011 the Tribunal determined to affirm the decision not to grant the applicants protection visas and advised them on the same day.
The grounds upon which the father (“the applicant”) claims to be a person whom Australia owed protection obligations were those of religion and political opinion, they being Muslims living in Gujarati State and supporters of the Congress Party. The applicant had told of matters that he believed constituted persecution, commencing in his youth in approximately 1974. At this time because of the communal rioting in that State he claims that his schooling was interrupted. He made other claims concerning interruption to his studies which concluded in him obtaining a degree in approximately 1992 although his evidence was that if his studies had not been interrupted he would have obtained that degree much earlier. After graduating the applicant married and although at first he had difficulty finding a job in August 1994 he joined a bank. He had previously been working for a municipal corporation as a sanitary inspector which he says he had to quit because of animosity directed at him consequent upon the demolition of the Babri Mosque and his own religious and political beliefs.
After the applicant joined the bank he discovered that certain colleagues of his, who are Hindu, were engaged in a fraud upon their employer. The applicant reported this incident to the employers and as a result those responsible were dismissed. The applicant claims that the perpetrators then sought to utilise their own political influence within the BJP to have their positions reinstated and threatened him. The applicant claims that as a result of these actions he was required to leave his employment and to remain in his home. He made two trips to Australia. During the second trip he tells that his wife was subject of an assault by persons associated with the BJP because of his activities. He says that the men involved threatened to harm his wife and to kidnap his children. His wife was so concerned about this that she telephoned him in Australia and he immediately returned home. He then made arrangements for the whole family to leave India for Australia.
The Tribunal questioned the applicant about his claims and came to the conclusion that in making them he was prone to exaggeration:
“Overall, the Tribunal finds that the applicant exaggerated many of his claims about the events that unfolded during his involvement in student politics. [107] [CB 165]
…The Tribunal finds the applicant has exaggerated the claim [that he was in hiding from 1987 until 1990] and does not accept the truth of it. [109] [CB 166]
…The Tribunal finds that the applicant has exaggerated his claims and does not accept that BJP members tried to kill him on “a number of occasions” or accused him of involvement in Pakistani-backed Muslim organisations and the riots in Ahmedabad.” [121] [CB 168]
The Tribunal accepted the applicant’s evidence about the fact that he discovered the fraud in the bank and that the perpetrators may have attempted to bribe or threaten him whilst he was at the bank in order that he should retract his allegations, but:
If they also threatened the applicant over the telephone because they held him responsible for the loss of their job and their reputation, the Tribunal finds that the applicant has understood these threats as empty ones and any such threats did not amount to serious harm. [128] [CB 169]
In that regard the Tribunal notes that the applicant did not seek to relocate his family to a safer area but continued his life by remaining in his place of residence except when he was in Australia. As stated immediately below:
“The Tribunal finds that the purpose of the applicant’s travel to Australia was not to flee persecution, but to seek a better future for his family. The Tribunal finds that this was the reason why he left his job at the bank.” [128] [CB 169]
The Tribunal structured its findings to deal with the applicant’s claims in historical order. It concluded that the early claims about the interruption of his studies were both exaggerated and were so distant that they could not represent a real chance of harm should the applicant return to India now. In regards to his claims about persecution stemming from his political involvement with the Congress Party the Tribunal made similar findings.
The Tribunal was, however, prepared to consider as capable of evidencing serious harm giving rise to a well-founded fear of persecution the events described in the last few years concerning his employment at the bank but it concluded:
“On the basis of the above findings that the applicant was not in fear of being seriously harmed by his former colleagues when he left India, the Tribunal also finds that he was not in fear of being seriously harmed upon his return to India. The Tribunal notes that this finding is supported by evidence that he continued his active involvement in local politics, and was actively involved in the municipal corporation election held on 10 December 2010. The Tribunal notes from country information before it that the BJP secured 98 of the 114 seats, followed by the National Congress Party with 14 seats. Since the evidence of the applicant is that the candidate he supported was not elected, the Tribunal does not accept that BJP supporters took retaliatory action against the Congress Party supporters. This finding is supported by the fact that the BJP won the election overall.” [130] [CB 170]
The Tribunal also indicated that it did not believe the applicant had a well founded fear of serious harm because after he returned to India he continued to live with his family and obtained employment as a sales manager. The Tribunal concluded that the threats made by the four men did not amount to serious harm and would, therefore, not constitute any basis for making a finding of a well founded fear should the applicant return in the reasonably foreseeable future.
The Tribunal considered not only the personal revenge claim made by the applicant but also whether or not there was sufficient in the claim to indicate that the event might have involved a convention reason as well as personal revenge. These matters are dealt with by the Tribunal from [133] [CB 171] to [136] [CB 172]. The Tribunal considers a number of authorities including Minister for Immigration & Anor v Rajalingam (1999) 93 FCR 220, Magyari v Minister for Immigration & Anor (1997) 50 ALD 341, Minister for Immigration & Anor v Abdi (1999) 87 FCR 280, and Minister for Immigration & Anor v Singh (2002) 209 CLR 533. The Tribunal then went on at [137] to consider the situation arising out of heightened communal tensions in Gujarat but came to the conclusion that any threats made by the four men were significantly and essentially motivated by feelings of personal revenge:
“The applicant’s religion and/or his affiliation with the Congress Party may have been referred to in order to insult the applicant, harass him verbally or as a means for the four men to attract the interest of those who they felt might assist them, but these were not the reasons why the four men were seeking to intimidate the applicant and exact revenge upon him. Accordingly, the Tribunal finds that the desire for personal revenge, not the applicant’s religion or political opinion, whether considered individually or cumulatively, was the significant and essential reason for such threats that were made. Therefore, the requirement of section 91R(1) has not been met.” [137] [CB 172]
When the Tribunal came to consider the possibility of the applicant being involved in further communal violence within Gujarat, it accepted that there were problems in the area, but:
“The Tribunal has taken into account the fact that despite the massive upheaval caused to thousands of people by communal riots over the past 30 years in Gujarat, the applicant has pursued a successful career and has held professional positions up until his departure from India. In addition, he has continued to live in Gujarat and participate actively as a senior and well-respected community representative and campaigner with the National Congress Party. His children have attended reputable private schools. Apart from the period of time in his childhood when his family resided with friends, he has not been displaced and has never been forced to live in a camp of displaced persons. [145] [CB 174]
Having considered the evidence overall, the Tribunal finds that the applicant does not face a real chance of being persecuted if he returns to India now or in the reasonable foreseeable future.
…The Tribunal accepts that the applicant would have had a well-founded fear of persecution as a Muslim during those periods of time when he was in an area directly affected by communal riots. However, the Tribunal finds that past persecution of that kind, does not translate into a real chance of persecution now or in the reasonably foreseeable future in this case. That being said, the Tribunal has considered the country information on communal tensions in Gujarat before it and accepts that further communal riots are likely to take place in Gujarat in the foreseeable future. However, the Tribunal can do no more than speculate about whether the applicant would find himself in the midst of such a riot and then speculate further as to whether he would also suffer serious harm as a result for reasons of his political opinion or his religion, or both cumulatively.” [146] [CB 174]
At [148] [CB 174] the Tribunal indicated that even if it was wrong in making the findings which it did about communal violence and the applicant’s fear it believed that the applicant could relocate to another state in India such as a metropolitan centre like New Delhi or Calcutta. It had discussed this with the applicant and noted his concern about the language:
The Tribunal has considered the applicant’s claims that political organisations opposed to him could track him down because he is a Gujarati Muslim and the people will therefore pay more attention to him. The Tribunal does not accept that an Indian national living in a cosmopolitan area of India will stand out in a remarkable way. The applicant added that he is also unable to relocate because of language. The Tribunal does not accept this claim as he admitted in his application form that he reads, speaks and writes Hindi as well as Gujarati. Moreover, the Tribunal has taken into account the fact that he is a well‑educated, professional man who has relocated within Gujarat for professional reasons previously. The Tribunal finds that it is reasonable to find that he can do so again. [149] [CB 174]
The Tribunal then turned to deal with the claims of the second named applicant, the wife. Although the wife had only completed form D the Tribunal did consider whether or not she had any claims to make on her own behalf arising out of her evidence concerning the threats that were made to her by people who had also threatened her husband:
“The Tribunal notes that the second named applicant was not able to present her claims in any detail. Overall, the Tribunal is of the view that her claims are exaggerated and unreliable. If the applicant had given evidence that these people had come to her door and threatened her in her own home on numerous occasions, it would have been reasonable to expect that she could not remember exactly how many times these threats took place. As it was, the applicant was only threatened at her home two or three times and the applicant cannot definitely tell the Tribunal the answer. When asked to clarify the number of times she had been threatened, she said, “It might have been there or four times”, but she could not remember clearly.” [152] [CB 175]
The Tribunal could not be satisfied that the applicant was abused in the manner described for the reasons stated between [CB 153] and [155], [CB 175, 176].
The Tribunal then turned to the claims made by the applicant’s son. Once again, it acknowledged that it was not limited to considering the basis upon which the claims were made in the protection visa application and accepted that in the light of subsequent claims and evidence, if an applicant met the alternate criterion at the time of decision, they may be persons to whom Australia has protection obligations. The Tribunal noted that the son had to miss school and was teased. It noted that the father had given evidence that his son was prohibited from school functions because of his religion and forced to sit on the last bench. The father claimed that his son was pushed and injured at school because he is a Muslim and made reference to the kidnap threat:
“The Tribunal finds on the basis of the exaggerated nature of the first applicant’s claims and evidence overall, that the claims concerning discrimination and harassment directed at his son have also been exaggerated. The Tribunal is satisfied that the third named applicant may have been subjected to teasing and discrimination by fellow Hindu students given the communal tension in Gujarat. However, that kind of discrimination does not amount to “serious harm” within s. 91R(1)(b) of the Act.” [161] [CB 176]
The Tribunal finally turned to the claims of the fourth applicant, the daughter, and essentially came to the same views concerning her claims as it did with regard to the son.
On 5 December 2011 the applicants filed an amended application for this court. The grounds of that amended application were:
“1.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do) if they asked to relocate in India. The Tribunal’s failure to satisfy this statutory obligation was a serious jurisdictional caused by the Tribunal.”
I appreciate that the applicant’s command of English is limited and I take this ground to be a complaint that the Tribunal did not consider whether the applicants would suffer serious harm if they relocated within India. As I had indicated above, in dealing with the relocation matter, the Tribunal did appear to address the situation that the applicant might find should he relocate. It concluded that he would not suffer any serious harm from his enemies in Gujarat and he would not suffer the type of economic or other serious harm because of his ability to speak Hindi and his general capability as a family provider. This claim is not made out.
The second claim is:
“2.The Tribunal failed to consider an integer of the applicant’s claim, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.”
The Tribunal did deal with the applicant’s general claims about his religious views at [CB] [173,174] where it discussed country information regarding religious minorities in India. Having found that the applicant did not have a well founded fear of persecution for this reason was not necessary for the Tribunal to consider the question of effective state protection.

The third claim is:
“3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.”
This ground is somewhat confusing. It is not clear what provisions the applicant is referring to. The Tribunal has to come to a state of satisfaction pursuant to s.65 and s.36(2) of the Migration Act 1958 (Cth)[1], and it does that on the basis of the evidence it hears and the evidence from other sources which it takes into account. If the applicant wished to show that the Tribunal had done this in breach of the Act he would have had to do more by way of particularisation.
[1] “Act”
The fourth ground is that:
“4.The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
(a) It failed to properly apply the consideration that the applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible which was the case here.”
Insofar as this ground seeks to argue with the Tribunal’s findings it is seeking impermissible merits review. As Ms Hooper points out in her helpful written submissions, the specific issue of whether RRT is required to afford the applicant the benefit of the doubt was addressed by Jacobson J in SZHIS v Minister for Immigration & Anor [2006] FCA 1641. In that case his Honour said at [10-11]:
[10]The first ground is that the Tribunal committed a jurisdictional error because it did not afford the appellant the benefit of the doubt when there was no material to the contrary of that which the appellant asserted. However, it is clear in my view that this ground of appeal cannot succeed because it is contrary to the well-established principles that apply to the provisions of s 65 of the Migration Act.
[11] It is well established that s 65(1) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, what is required is a refusal of an application if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied; see for example Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73.”
See also SZLFS v Minister for Immigration [2009] FCA 75 at [23].
There are then three further grounds put forward by the applicant. The fifth ground is:
“5.The Tribunal did not give to the applicant before hearing the independent information that it had about politics in Gujarat, India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.”
Whoever was advising the applicant to make this application and the grounds has misunderstood s.424A of the Act because for some many years now the provision of country information has been exempt from the requirements of s.424A and by virtue of s.424A(3)(a).
The sixth ground was that:
“6.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 of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s claims without first assessing whether the substance of the documents corroborated his claims.”
It should be clear from these reasons that the Court finds that the Tribunal did investigate the applicant’s claims in some considerable detail. To find that the Tribunal was biased without any further particulars is not within the power of this Court. Allegations of bias are ones that must be clearly made and strictly proved cases. Neither has been done here. I would also repeat that in my view the Tribunal fully analysed the possibility of future harm that the applicant may suffer should he return to India. I note that the real chance test was discussed by the Tribunal at [118] and [147] of the Tribunal’s reasons. There is no merit in this ground.
At the hearing before me I was addressed not only by the applicant but also by his wife and by both of his children. Essentially, they sought to rehearse the merits claims which they made before the Tribunal. These, I explained, I was unable to hear because merits review by this Court is not permitted. However, they also made two allegations concerning the Tribunal’s treatment of the wife and two children which, if substantiated, might have been capable of amounting to jurisdictional error by virtue of breaches of s.425 of the Act. In respect of the wife it was claimed that the Tribunal did not ask her questions and that she was not given a chance to tell everything she knew.
It is to be recalled that the wife did give evidence and was asked about the most serious allegations that had been made on behalf of herself and her husband, namely, the assault by those men who had threatened her husband and sought revenge against him for the activities which the Tribunal accepted had occurred. The Tribunal reports this conversation and that is the only evidence before this Court. The applicant has not submitted a transcript and without it I cannot be satisfied that the Tribunal did not allow the wife to fully explain her case or to fully corroborate her husband’s claims.
I also note that when the Tribunal dealt with the wife’s evidence it reported it at [80 - 82] [CB 160 - 161] and after she had given evidence the applicant was asked whether he wished to say anything in response and he did not do so [83] [CB 161]. The Tribunal assessed the evidence which the second applicant had given at [152] [CB 175] already extracted in these reasons. I am unable to make a finding that the Tribunal fell into jurisdictional error by not providing the second applicant with a proper opportunity to give evidence and present arguments on the basis of the submissions alone and in the face of the Tribunal’s decision record and grounds and reasons.
The second argument that was raised was raised on behalf of the children. It was said that the children were not given an opportunity to speak. The requirement under s.425 is for any person who has a claim to have an opportunity to appear before a Tribunal to present evidence and make submissions. The Tribunal’s obligation is to invite them to do this and not to hinder them in their exercise of the rights thus conferred: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. These two children were invited to attend the hearing and they did attend it. Once again I have no copy of the transcript. There is no evidence that those children either requested to give evidence or were hindered in so doing. There is no evidence that either parent requested that the children give evidence or that those requests were not adhered to. What there is evidence of is that both parents spoke about their children and their concerns for them. I was not asked at the hearing to listen to the CD of the Tribunal hearing, nor was it suggested that this would show anything more than that the Tribunal did not offer the children an opportunity to be heard. Whilst the children are not infants they are not of an age where procedural fairness would require that they be so asked where their interests were being protected by their father: Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [102-104], SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539. But in this case I do not have any evidence that they were not asked.
I dismiss the application. I order that the First and Second Applicants pay the First Respondent’s costs assessed in the sum of $5,000.00.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 7 March 2012