SZRLP v Minister for Immigration
[2012] FMCA 1247
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1247 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 424A, 425 |
| 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 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 |
| Applicant: | SZRLP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1003 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1003 of 2012
| SZRLP |
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 13 April 2012. The Tribunal affirmed a 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 June 2011 and applied for protection in August 2011. He attended an interview with a Departmental delegate. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. The only evidence of what occurred at the hearing is as recorded in the Tribunal reasons for decision.
The applicant claimed to fear persecution in India as a result of his Hindu religion and his relationship with a Muslim girl between 1993 and 1995. He claimed that because of religious tensions the girl’s family and community opposed the relationship, threatened him and “assigned” people to beat him up. He claimed her family decided to kill him as she had at that time not consented to a marriage arranged by her family.
The applicant lost contact with this girl in around 1995. He lived in France from 1999 to 2003, where he unsuccessfully applied for refugee status. He then lived illegally in England from 2003 to 2006, but he did not seek refugee status in England. In 2006 he returned to India to participate in an arranged marriage with another woman.
The applicant claimed that the girl’s brother and a Muslim friend drove him off the road in August 2006 but he escaped with minor leg and arm injuries.
The applicant claimed he could not relocate to another part of India as he only spoke Tamil, that the authorities would not protect him, and that the girl’s brother and his friends still wanted to kill him as they suspected he would eventually marry his former Muslim girlfriend. He claimed to fear the girl’s brother on the basis that the passage of time had not dimmed the brother’s persecution of him.
In its findings and reasons the Tribunal acknowledged that the applicant’s claims were based on the Convention ground of religion. It observed that there were no corroborative documents supporting his claims and that it was necessary to assess his credibility. While the Tribunal was prepared to accept that the applicant’s claims were “broadly consistent” and that he had become friendly with a Muslim girl at a bus stop in 1993, it stated that it had “comprehensive, unresolved concerns about [his] claims and evidence”.
The Tribunal referred to the “extraordinary” nature of the applicant’s claims that he was still being pursued by the girl’s brother, even though 17 years had elapsed since any relationship with the girl ended and after both the applicant and the girl had married other people. Nonetheless, the Tribunal acknowledged that the unusual or extraordinary nature of the claims did not of itself mean that such claims were untrue.
However, the Tribunal had regard to the applicant’s apparent inability to elaborate his account with any details, notwithstanding that the Tribunal had expressed concern to him about this issue and the fact that the Tribunal had offered the applicant the opportunity to provide further submissions on the credibility of his claims, the question of state protection and relocation. He had elected not to do so and reiterated his basic claims.
The Tribunal did not accept the applicant’s claims that he was being persecuted by the girl’s brother or anybody else in association with his relationship with the girl in 1993 to 1995. It had regard to the inability to elicit from him any detailed information about claimed events, “beyond broad platitudes” that the brother made threats, to the vagueness and lack of detail in his responses, to his inability to identify particular information about the girl, to his “superficial” knowledge about her background and situation and lack of knowledge of the family name as well as to his inability to elaborate on the nature of the threats he said the brother had made.
The Tribunal also had regard to the fact that the applicant had been able to live for extended periods in his district in India from 1995 to 1999 and from 2006 to 2011 without coming to harm. It did not accept he had been in hiding from the girl’s brother or from anybody else. Having regard to the fact that the applicant married in 2006, had two children and worked on the family farm and to his economic and family ties to the area, the Tribunal did not accept his suggestion that he “lived the life of a fugitive” in India.
Nor did the Tribunal accept the applicant’s claims that in 2006, the girl’s brother and his friends or anybody else purposely ran their car into the applicant while he was riding a bike. It found his explanation as to why he did not lodge a complaint to the police thereafter to be unconvincing for reasons which it gave. It found that he did not report the incident because it did not happen.
The Tribunal also considered the applicant’s claims that he was also under threat from the general Muslim community as a “corollary effect” of the girl’s family’s “antagonism towards him for having been involved in an interfaith relationship” or more generally “simply because he [was] a Hindu”.
The Tribunal did not accept the applicant’s claims to be under threat from the Muslim community on either of these bases or for any other reason. Nor did it accept that the police could or would act as agents for the girl’s brother and harm the applicant, as it did not accept that the brother or anyone else was interested in pursuing the applicant. The Tribunal was not satisfied the applicant had a well-founded fear of persecution in India for a Convention reason if he returned now or in the reasonably foreseeable future.
Given that it had not accepted the applicant’s claims he would suffer harm either by the girl’s brother, his friends, the general Muslim community, the police or anybody else, the Tribunal also found that he did not meet the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth).
The applicant sought review by application filed in this Court on 8 May 2012. There are two generally expressed grounds in the application. The first is that the Tribunal “did not put all adverse information to [him]” and so breached procedural fairness. The second is that the Tribunal “did not call [him]” for a second hearing and so “did not act with the jurisdiction”.
The accompanying affidavit states that “[d]etails of grounds will be filed when required”. However, the applicant did not file any amended application or written submissions and when given the opportunity to elaborate on his grounds in oral submissions, was unable to identify any adverse information that had not been put to him. He claimed to fear a threat to his life and took issue with the Tribunal’s failure to call him for a second hearing and to investigate the matter. He complained that the Tribunal just heard him for the first time and then rejected his claim.
The first ground in the application, that the Tribunal did not put all adverse information to the applicant, is unparticularised. There is nothing in the material before the Court to support any claim that there was any information to which the obligation in s.424A(1) of the Migration Act would apply.
The Tribunal relied exclusively on information given by the applicant when it disbelieved him. Such information was given by the applicant at the Tribunal hearing for the purposes of the review and was within the exception in s.424A(3)(b) of the Migration Act. It was not necessary for the Tribunal to put to the applicant its provisional reasoning insofar as this may be intended to be contended by the applicant. Moreover, it is apparent from the Tribunal’s account of the Tribunal hearing that it raised with the applicant in the course of the hearing dispositive issues and matters of concern and gave him the opportunity to comment.
The Tribunal also gave the applicant the opportunity to provide further submissions on credibility, state protection and relocation, but he elected not to take up that opportunity.
Ground one is not made out.
Ground two takes issue with the Tribunal’s failure to call the applicant for a second hearing. There is no legislative requirement to call an applicant for a second hearing and there is nothing in the circumstances of this case to indicate that the Tribunal either failed to comply with its obligation under s.425 of the Migration Act or that it was otherwise obliged to invite the applicant for a further hearing.
As indicated, the applicant attended a Tribunal hearing at which the Tribunal raised dispositive issues. He was given, but declined the opportunity to provide further submissions and there was no obligation on the Tribunal to conduct a further hearing before making its decision. Insofar as the applicant’s oral submissions appear to raise a contention that the Tribunal was under an obligation to investigate the matter or to make inquiries, there is no such general obligation on the Tribunal and this is not a case in which the limited obligation to inquire would arise in the circumstances discussed by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
Nor, insofar as this may have been intended to be contended, is there anything at all in the circumstances of this case to support any contention of either actual or apprehended bias arising out of the manner in which the Tribunal proceeded or the Tribunal reasons for decision (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and citations therein). The applicant failed because the Tribunal disbelieved his essential claims on the basis of its adverse assessment of his credit.
Such findings were open to the Tribunal on the material before it for the reasons that it gave and no jurisdictional error is apparent either on the basis contended for in the application or otherwise. As no jurisdictional error has been established, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks costs in the sum of $3,500, which is considerably less than the amount provided for in the Federal Magistrates Court Rules. It is reasonable and appropriate in light of the nature of this and other similar matters.
The applicant indicated that he was unable to pay the costs. However, his impecuniosity is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. It may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 16 January 2013
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