SZQZH v Minister for Immigration
[2012] FMCA 627
•6 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 627 |
| MIGRATION – Review of decision of Refugee Review Tribunal – where Tribunal found applicant would not be sought out if relocated – where Tribunal did not consider whether applicant would suffer serious harm – whether Tribunal applied correct relocation test – whether Minister had jurisdiction to make decision – whether Tribunal failed to consider an integer of the claim. |
| Migration Act 1958 (Cth), ss.65, 91R(2)(a) |
| Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZQZH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2930 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 July 2012 |
| Date of Last Submission: | 6 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2930 of 2011
| SZQZH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 5 September 2009 as the accompanying spouse of a person who had a student visa. On 2 March 2011 he applied for a protection (class XA) visa which was declined by a delegate of the Minister on 2 May 2011. On 31 May 2011 the applicant sought review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal and gave evidence to it. On 28 November 2011 the Tribunal determined to affirm the decision not to grant him a protection visa.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of political opinion. He told that his father was a member of Akali Dal and that whilst his father was now working in the United Arab Emirates[1], he had, before 2003, been molested by thugs working on behalf of the Congress Party. The applicant told the delegate that in 2007 he had received three or four calls from Congress thugs who threatened him with death because his father was working for the Akali Dal. He told that as a result of those threats he went to the UAE in January 2008 and worked there as a carpenter until 2009.
[1] “UAE”.
However, it was not these matters that prompted the applicant to make his claim. The applicant told that on 8 April 2009 he married in India. He told that his wife was the daughter of a member of the Congress Party. He told that he and his wife travelled to Australia under her student visa and after they had been here for a few months their relationship deteriorated. He left the matrimonial home and moved to Griffith. After that, threats began to issue from his wife’s family. These included an attempt by the family to obtain 400,000 rupees from his family. This required his family to take proceedings in India to prevent this alleged debt being enforced. Copies of certain pleadings relating to the matter are found at CB38-52. The applicant told that if he returned to India he feared persecution by the wife’s family, which he put down to the fact that his father-in-law was a member of the Congress Party and that his family were members of the Akali Dal.
The Tribunal discussed with the applicant the possibility that should he return to India he might relocate to another area. The Tribunal suggested to the applicant that this might be a reasonable thing for him to do if he was truly in fear and that it was a reasonable thing to expect him to do given that he was a trained carpenter who had shown that he was able to live away from home both in the UAE and in Australia. The applicant responded that he felt that his enemies would find him wherever he might be in India. The Tribunal concluded that it could not accept that the motivation for the harm that the applicant feared was convention related:
“The Tribunal does not accept that the applicant’s and his family’s dispute with his in-laws and the threats he claims to have received are essentially and significantly motivated by the applicant’s imputed political opinion, membership of a particular social group of his family or any other Convention reasons. Rather, the essential and a significant reason behind the dispute and the threats is the breakdown of the applicant’s marriage and the resulting fallout. The Tribunal does not accept that the applicant’s fear of his in-laws is Convention related.” [52] CB95
The Tribunal accepted that the applicant’s father was a member of Akali Dal and that he had some minor political involvement. It accepted that it was very possible that he had been harassed or threatened by members of the Congress Party. It also accepted that it was possible that after his father had departed for the UAE the applicant was subject to some harassment and threats by local members of Congress.
“However, the applicant expressly stated at the hearing that after residing in the UAE for 12 months, following his return to India, he did not face any threats or harassment from anyone in India between January 2009 and September 2009, despite residing continuously at his home address. In view of the applicant’s absence from India since September 2009, his father’s absence from India, the applicant’s lack of involvement in politics and political activities, the Tribunal finds that the applicant’s chance of facing serious harm for the reason of his imputed political opinion, membership of the particular social group of his family or any other Convention reasons is remote.” [53] CB95
The Tribunal also concluded that it could not accept the applicant’s claims that he was unable to relocate because he had no money and employment opportunities were limited, or that he could be found anywhere in India.
“The applicant’s evidence indicates that he is young, relatively educated and has training qualifications and experience as a carpenter. He worked as a carpenter in India and in the UAE has proven his resilience and capacity to survive in an alien environment by being able to live and support himself in the UAE between 2008 and 2009 and in Australia over the past two years.” [55] CB96
For these reasons the Tribunal rejected the applicant’s claim.
On 20 December 2011 the applicant filed an application with this court for review of the Tribunal’s decision. The application contains three grounds. The first was:
“The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do so), if he asked to relocate in India. The Tribunal failure to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.”
The only way in which the applicant would suffer serious harm as defined in s.91R(2)(a) of the Migration Act 1958 (Cth)[2] should he relocate was if the Tribunal accepted that he would be found by his enemies. The Tribunal concluded that he would not be found or, perhaps more accurately, that he would not be sought out by local politicians from his own village. As a result of that finding, there was no necessity to consider whether what might happen to him if he was found constituted serious harm. There is no merit in this ground.
[2] “Act”.
The second ground was:
“The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.”
This interesting suggestion has not been particularised but in any event, it is probably a misconception of s.65 of the Act:
“Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
There is no reference in that sub-section to reasonable satisfaction and the obligation is upon the visa applicant to satisfy the Minister in a positive way that he meets the visa requirements. The Minister is not required to be satisfied that the applicant does not meet the visa requirements. The obligation to establish satisfaction is all upon the applicant: Abebe v The Commonwealth (1999) 197 CLR 510. The Tribunal was entitled to come to the conclusion the applicant had not satisfied it that he met those requirements and provided it based its views on available evidence, which I am satisfied it did, there is no jurisdictional error in the conclusion.
The third ground was:
“The Tribunal has failed to investigate applicant claim, specially the ground of persecution in India. Therefore, the Tribunal decision 28 November 2011 was effect by actual bias constituting judicial error.”
It will be clear from the extracts of the Tribunal decision that are set out in these reasons that the Tribunal did consider the applicant’s claims. In particular, it considered his claim that he had been persecuted in India. Of course, the Tribunal’s duty is to consider what might happen should the applicant return to India. Persecution in the past may well be evidence of the likelihood of persecution in the future but it is not always so. This Tribunal did consider the applicant’s alleged past persecution. It concluded the most likely cause of any future friction that he might incur was not Convention related. It concluded that any Convention related persecution was unlikely to occur. I am satisfied that the applicant’s claims were investigated. The claim that the Tribunal was biased cannot stand, such an allegation must be specifically pleaded and proved. The applicant has provided no such proof either by way of evidence or submission from the bar table.
The applicant appeared before me today. He told me that the Tribunal did not believe him and that what he said had happened to him in India was correct. He told me that the Tribunal did not accept the political things that he had told it. He told me that he had enemies in India and they would find him anywhere. These representations do not change my view that the Tribunal did thoroughly examine all his claims. It did not disbelieve the applicant, it merely declined to accept that such problems as he had experienced were Convention related. It also declined to accept his assertion that he would suffer serious harm should he return to India as a result of the political opinion that might be imputed to him by being his father’s son. The Tribunal came to that conclusion based on the applicant’s own evidence that he had not suffered in the period that he had been in India in 2009. That conclusion was open to the Tribunal on the evidence, no jurisdictional error is indicated.
In the circumstances, I am unable to assist the applicant by providing him with review of the Tribunal’s decision. The application must be dismissed. The applicant shall pay the respondent’s costs which I assess in the sum of $3,500.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 16 July 2012
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