SZRDY v Minister for Immigration
[2012] FMCA 507
•12 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 507 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in India – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A |
| SJSB v Minister for Immigration [2004] FCAFC 225 |
| Applicant: | SZRDY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 324 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 12 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2012 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Minter Ellison |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 324 of 2012
| SZRDY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 17 January 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the application a protection visa. The applicant is from India and had made claims of persecution at the hands of Naxals. The following statement background facts concerning the applicant’s claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 5 June 2012.
The applicant is a citizen of India[1]. He arrived in Australia on 5 October 2010[2] holding a temporary business (Class UC, Subclass 456) visa[3].
[1] see Court Book (CB) 27; and as found by the Tribunal at CB 122 [69]
[2] CB 29
[3] CB 28
He submitted an application for a protection visa to the Minister’s department on 12 November 2010[4].
[4] CB 1-31
The applicant’s claims to have a well-founded fear of persecution in India were set out in a written statement attached to his application[5].
[5] CB 30-31
Broadly, the applicant claimed that he travelled to “Missoram” (apparently Mizoram) in northern India in a search for employment. During that journey, he claimed that he met a man, called Raj Vinayak, who offered him a job. After meeting this man, however, he claimed that he was detained at a camp by Naxalites (or Maoists) where he was mistreated until he relented and consented to join with that group in training activities involving the use of explosives. He did this, he wrote, even though he “did not like their activities”. He claimed that he was meant to participate in an attack which was foiled by members of the Indian army. He used this opportunity to escape, returning with the assistance of a sympathetic stranger to his home where he later married.
Unfortunately, the Naxalites discovered him and, he claimed, were responsible for a car accident on 18 May 2001 in which his wife was killed and he was hospitalised with injuries for a period of two weeks. After his discharge, the applicant said that he stayed with his aunt for two months in Madras before leaving for Dubai where he resided from 18 November 2001 until 9 September 2007. Upon his return to India, he claimed that the Naxalites knew about his return, necessitating his escape once again to Dubai, an escape which was short-lived when his visa was cancelled. The applicant claimed that he cannot return to India because of the Naxalites’ influence and network throughout India.
On 1 June 2011, the Minister’s delegate refused to grant the applicant a protection visa. The delegate’s decision record is at CB 49-62.
The applicant applied to the Tribunal for review of the delegate’s decision on 20 June 2011[6].
[6] CB 63-66
On 4 July 2011, the Tribunal received a written submission from the applicant, together with copies of various documents provided in support of his application.
By letter dated 28 July 2011, the Tribunal invited the applicant to attend a hearing[7], an invitation which the applicant duly accepted. He appeared before the Tribunal on 25 October 2011[8]. The Tribunal’s account of the hearing is set out in the record of decision at CB 117 [33]-[67].
[7] CB 93-99
[8] CB 100-101
On 17 January 2012, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal’s decision is at CB 113-124.
The Tribunal’s findings and reasons
The Tribunal expressed “serious concerns” about the applicant’s credibility and the plausibility of his claims[9], including that[10]:
a)he was persuaded by a stranger on a train to go and look for work in a remote and distant corner of India;
b)he was forcibly recruited into a Naxalite group and shortly thereafter entrusted to plant a bomb;
c)he managed to escape from a checkpoint during a gun battle and that he had the assistance of a complete stranger who facilitated his return to Kerala out of sympathy;
d)the Naxals continued to take an interest in him and cause a car accident that claimed the life of his wife;
e)following this, the Naxals continued to pursue him and, on one or two occasions, assaulted him on his sojourns back in Kerala during a period in which he spent considerable time abroad.
[9] CB 122 [70]
[10] See the Tribunal’s detailed analysis at CB 122 [70]-[71] and its summary at CB 123 [72]
Despite these serious concerns, the Tribunal did not made an adverse credibility finding[11].
[11] CB 123 [72]
The Tribunal, however, went on to find that, even if it were to accept his “far-fetched claimed interaction with the Naxals in 2000 at face value”, the applicant’s fear “is not well-founded in India today”[12]. In particular, the Tribunal[13]:
a)noted that applicant’s claims of forcible recruitment and escape were “remote in time”, having occurred “at the turn of the century”;
b)found that the Naxals had ample opportunity over the past decade (during the periods that the applicant was living at his home in India) to subject him to persecution if they had any interest in so doing, noting that the applicant “went to church, made travel and work arrangements abroad [and] spent the bulk of his time at home”;
c)did not accept that the Naxals will track down people trained by them who subsequently escaped because “the facts of the case … do not bear out that this was the case even in his own circumstances”.
[12] CB 123 [73]; see also CB 124 [75]
[13] at CB 123 [74]
The Tribunal also found that there is no real chance that the applicant would face persecution for a Convention reason if he were to relocate outside Kerala, for example, to Delhi or Calcutta[14]. The Tribunal noted that the Naxalite movement is strongest in certain tribal areas and does not have a presence in Delhi or Calcutta.
[14] CB 124 [76]
The Tribunal found that it would be “reasonable and in effect practical” for the applicant to relocate given “his particular circumstances and possible impacts upon his family members” which the Tribunal earlier set out[15]:
The applicant speaks Hindi, has experience as a forklift operator, has worked abroad and demonstrated an ability to adopt to different locations and to live and work in other countries. There are no serious impediments either physically or legally to the applicant’s relocation within India.
[15] at CB 124 [77]
The Tribunal found that there is no real chance that the applicant would face persecution for any Convention reason were he now to return to India and, accordingly, affirmed the decision not to grant the applicant a protection visa[16].
[16] CB 124 [79]-[81]
These proceedings began with a show cause application filed on 14 February 2012. I gave directions in relation to that application on 8 March 2012. On 10 April 2012, in accordance with an opportunity afforded by me in those directions, the applicant filed an amended application. There are four grounds in the amended application:
1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal’s failure to satisfy this statutory obligation was a serious jurisdictional [error] caused by the Tribunal.
2. 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.
3. The Tribunal did not give to the applicant before the hearing the independent information that it had about Naxalite movement in India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.
4. 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 credit without first assessing whether the substance of the documents corroborated his claims.
I have before me as evidence the court book filed on 20 March 2012 and the applicant’s affidavit filed with his original application.
The applicant filed no written submissions and his oral submissions were limited to his disagreement with the merits of the Tribunal decision on relocation.
I substantially agree with the Minister’s submissions.
Ground 1
By this ground, the applicant contends that the Tribunal fell into jurisdictional error by failing properly to consider whether the applicant would suffer “serious harm” in accordance with s.91R(2)(a) of the Migration Act1958 (Cth) (“the Migration Act”) “if he was asked to relocate in India”.
This ground is misconceived.
Section 91R(2)(a) is a definitional provision. It sets out, without limitation, instances that constitute “serious harm” for the purpose of s.91R(1)(b), which provides that persecution involves “serious harm to the person”. There is nothing to suggest that the Tribunal misdirected itself as to this requirement[17].
[17] see CB 115 [13]
In any event, the Tribunal noted, in the course of its consideration relating to relocation, that the applicant “faced no serious harm at the hands of the Naxalites even in Kerala whilst he was in India, and that had the Naxalites had any interest in causing serious harm to him, they had ample opportunity to do so”[18]. It was against this background, and in the light of information that showed that the Naxalite movement is “not noted for its strength in Delhi or Calcutta”, that the Tribunal found that there is “no real chance that the applicant would face persecution were he to return to India and to relocate to either of these centres”[19].
[18] CB 124 [76], emphasis added
[19] CB 124 [76], emphasis added
I do have some concern about this aspect of the Tribunal’s reasons. At [70] of its reasons[20], the Tribunal summarised the applicant’s claims and its concern about them. The Tribunal expressed further concerns at [71] of its reasons. At [72] of its reasons, the Tribunal reiterated its serious concern about the applicant’s credibility:
Despite the Tribunal’s serious concerns regarding the applicant’s credibility, in particular, that he was persuaded by a stranger whilst on a train trip to Delhi to look for work to go to a remote and distant corner of India; that he was forcibly recruited into a Naxalite group; that shortly after being recruited that he was entrusted to plant a bomb to disrupt Indian Independence Day celebrations; that he managed to escape from a checkpoint during a gun battle and that he had the assistance of a complete stranger who facilitated his return to Kerala out of sympathy for him; that the Naxals continued to take an interest in the applicant, and caused a motor vehicle collision that claimed the life of the applicant’s wife and that following this the Naxals continued to follow him and on one or two occasions assaulted him on the applicant’s sojourns back in Kerala, whilst he spent a considerable period of time after the collision working abroad in Dubai, given its finding below that the applicant can relocate elsewhere in India, for example in Delhi or Calcutta, where the Naxalites do not have a significant presence, the Tribunal finds it unnecessary to make an adverse finding on the applicant’s credibility.
[20] CB 122-123
The Tribunal made no adverse credibility finding, apparently because of its finding on relocation.
The Tribunal set out in its reasons the correct approach to dealing with claims for a protection visa under the Refugees Convention and the Migration Act. That correct statement is reproduced at [13]-[17] of the Tribunal’s reasons[21]. As is made clear at [13], an applicant must fear persecution. If an applicant’s fears are not genuine, then the Tribunal is entitled to base its decision upon an adverse credibility finding. In my view, it was clearly open to the Tribunal to do so in this case. On the Tribunal’s assessment, the applicant’s claims were quite far‑fetched.
[21] CB 115
It is a concern if the Tribunal seeks to avoid dealing with important credibility issues by resort to a relocation finding. Such a finding only is called for if the Tribunal finds that an applicant faces a well‑founded fear of persecution in his or her country of origin. It would be an inversion of the decision making process to make a relocation finding in circumstances where the Tribunal knows or strongly suspects that an applicant’s claims are false. Nevertheless, in the present case, the Tribunal made an unqualified finding at [75][22] of its reasons that there was no real chance that the applicant would face persecution at the hands of the Naxals were he now to return to India. That finding was a finding in relation to India as a whole.
[22] CB 124
Having found that the applicant did not face persecution anywhere in India, it was unnecessary for the Tribunal to proceed to make a relocation finding unless the Tribunal entertained real doubt. It was not a jurisdictional error, however, for the Tribunal to make a relocation finding on the basis which counsel for the Minister appropriately described as a “belt and braces” approach. The Tribunal’s decision is supported by its finding at [75]. Any concern or difficulty that the applicant has with the further and unnecessary relocation finding does not point to a jurisdictional error because the decision is independently supported by the finding at [75].
Ground 1 is not made out.
Ground 2
The applicant contends that the Tribunal “had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act”.
This ground is put forward without particulars. Framed in this way, it is devoid of any identification of any relevant or meaningful legal error.
In any event, the ground must fail.
First, the Tribunal was properly seized of jurisdiction[23] and there is nothing to suggest that the Tribunal’s decision was not reached in accordance with the procedures set out in Division 4 of Part 7 of the Migration Act, which, by s.422B, is an exhaustive statement of the natural justice hearing rule.
[23] see CB 114 [5]
Secondly, this ground erroneously inverts the test of satisfaction. The legislative scheme (as established by s.65(1) and s.36(2)) requires the refusal of a visa if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied[24]. It is well-established that it is for an applicant to make out his claims.
[24] see, for example, SJSB v Minister for Immigration [2004] FCAFC 225 at [14]-[15] per Ryan, Jacobson and Lander JJ
Ground 3
By this ground, the applicant contends that, under s.424A, the Tribunal ought to have given him “before the hearing the independent information that it had about the Naxalite movement in India”.
Leaving to one side the temporal aspect of the ground as framed, it must fail. The country information falls within the exception in s.424A(3)(a) such that the obligation under s.424A(1) was not enlivened.
Ground 4
The applicant contends that the Tribunal constructively failed to exercise its jurisdiction by failing to engage “in an active intellectual process” with respect to allegedly corroborative documents the applicant submitted to the Tribunal which ultimately accorded the documents no weight. The applicant says that “it was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims”.
The documents in question are at CB 80-92 and are relevantly identified by the Tribunal[25] as being:
·a death certificate for his wife;
·a discharge certificate from a hospital relating to his head injury from the car accident;
·an untranslated “First Information” report (which was subsequently translated at CB 106);
·a membership form for the Indian Youth Congress.
[25] at CB 117 [32]
This ground cannot be sustained.
First, to the extent that the first three documents related to the applicant’s claims, the Tribunal actively considered them. In particular, the Tribunal considered them as probative of the fact of the accident resulting in death and injury but not of the claimed motivation of the accident, as advanced by the applicant[26]:
… Even if the Tribunal were to accept that the motor vehicle collision which claimed the life of the applicant’s wife and resulted in serious injuries to the applicant, having reviewed the FIR, photographs, death and discharge certificate, the Tribunal is not satisfied on the available evidence that his wife’s death is for the reasons claimed.
[26] See CB 122 [70] at CB 123.3
As can be seen from this passage, and contrary to the applicant’s contention, the Tribunal’s assessment and identification of its serious concerns as to the applicant’s credibility did not preclude it from considering the substance of the documents.
Secondly, the Tribunal was not required to consider the membership form because it formed no part of the applicant’s claims.
Conclusion
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks an order for costs fixed in the sum of $6,000. That is above the amount prescribed for a show cause hearing. However, the claim is, in my view, justified by the issues of substance raised in the amended application and the need for counsel to be briefed to appear and argue the matter today. The applicant said that he is unemployed and doubted his capacity to pay. That is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 June 2012
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