SZSLG v Minister for Immigration
[2013] FCCA 600
•21 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 600 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – Tribunal finding that the applicant could relocate within India – no finding on Convention nexus – decision supported by relocation finding nevertheless. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65 |
| Minister for Immigration v SZIAI (2009) 83 ALJR 1123 Randhawa v Minister for Immigration (1994) 124 ALR 265 SZQMR v Minister for Immigration & Anor [2011] FMCA 992 SZQRD v Minister for Immigration [2012] FCA 874 VCAK of 2002 v Minister for Immigration [2004] FCA 459 |
| Applicant: | SZSLG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3080 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3080 of 2012
| SZSLG |
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 (Tribunal). The decision was made on 27 November 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India, and had made claims of persecution at the hands of disgruntled former clients who had used his services as an investment advisor.
The following statement of background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 12 June 2013.
The applicant is a citizen of India who arrived in Australia on 10 February 2012 on a Tourist (Subclass 676) visa[1]. Immediately before arriving in Australia he resided in South Korea as a student[2].
[1] court book (CB), 33, 57
[2] CB 14.5
The applicant lodged a valid application for a protection visa on 12 March 2012[3]. The applicant’s written claims for protection were included in his protection visa application[4]. The applicant also submitted with his application copies of pages from his passport[5] and his South Korean registration card[6].
[3] CB 1-25
[4] CB 17-20
[5] CB 26-37
[6] CB 38
The applicant was a financial planning consultant for the MetLife Insurance Company in India and claimed to fear harm from former clients, which included Congress Party members, because he failed to deliver promised benefits and he was blamed for the impact of the global financial crisis. He claimed he was attacked and threatened. The applicant also initially claimed to fear harm from Congress Party members due to his support of Lok Dal. He claimed they ransacked his house and threatened his family. The applicant claimed the State authorities would not provide protection to him in India[7].
[7] CB 17-20
The delegate’s decision
By a letter dated 27 June 2012, the applicant was invited to attend an interview with the delegate[8], which he attended on 19 July 2012[9]. At his interview, the applicant claimed further that he was attacked twice – firstly, by a group of people when he was walking at night and secondly, he was hit by a truck whilst riding his motorbike[10].
[8] CB 44-45
[9] CB 54.3
[10] CB 55.2
On 1 August 2012, the delegate made a decision refusing to grant the applicant a protection visa[11]. The delegate was not satisfied that the applicant had been attacked by investors because of any investment policies that he may have sold them. In making this finding, the delegate had regard to the applicant’s lack of recall about what he had written and not written in his claims, unknown time frames for the alleged events, identified discrepancies in his account of events and the fact that he did not deem it necessary to leave India until about 31 January 2011[12]. The delegate was also not satisfied that the applicant had a subjective fear of persecution as he did not apply for protection whilst overseas (in South Korea) and instead chose to make preparations for further studies there[13]. The delegate concluded that the applicant’s fear of harm was not well-founded[14].
[11] CB 50-62
[12] CB 56.5
[13] CB 56.9
[14] CB 57.9
The delegate also was not satisfied that the applicant satisfied the criterion for complementary protection given the availability of State protection, his ability to relocate within India and his delay in seeking protection[15].
[15] CB 59-61
The delegate was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations[16].
[16] CB 62
The Tribunal proceedings
On 24 August 2012, the applicant lodged an application with the Tribunal to review the delegate’s decision[17].
[17] CB 63-68
By a letter dated 22 October 2012, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 22 November 2012[18].
[18] CB 71-72
On 22 November 2012, the applicant attended the hearing and gave evidence in support of his claims[19]. He also submitted various documents regarding his employment at MetLife Insurance Company[20].
[19] CB 73-75, [23]-[40]
[20] CB 76-88; CB 94, [25]
At his Tribunal hearing, the applicant expanded on his claims and also asserted that his former clients hired low caste people to abuse and physically assault him. He claimed that he had given his address and hometown to clients and that disgruntled customers would shout abuse outside his house and damage his property[21]. He also claimed that his former clients had organised for a truck to collide with his motorbike[22]. The applicant did not press his claim to fear harm from Congress Party members because he was associated with or supported Lok Dal[23].
[21] CB 95-96, [28]-[29]
[22] CB 97-99, [29]-[30], [32]
[23] CB 102, [39]; CB 112, [73]
The Tribunal’s decision
In its decision dated 27 November 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa[24].
[24] CB 90-114
The Tribunal accepted that the applicant was employed as an insurance salesperson in India and had sold policies to customers who believed they had lost a considerable portion of their investment due to the global financial crisis[25]. The Tribunal also gave the applicant the “benefit of the doubt” and accepted that he gave his personal address to a number of customers and that given the size of his hometown, the applicant’s house might be located with sufficient enquiries[26].
[25] CB 108, [58]-[59]
[26] CB 109, [61]
The Tribunal rejected that the applicant’s former clients wanted to kill him and that they were waiting for the right time and place[27]. It found that if the applicant’s former clients had genuinely intended to kill him, then they would have done so because they had ample opportunity[28].
[27] CB 110, [67]
[28] CB 110, [64]-[67]
While the Tribunal had “doubts” that the truck incident was related to the applicant’s former clients, it accepted that the driver of the truck had been hired by the disgruntled clients. Despite this, the Tribunal found that the driver did not wish to kill or seriously injure the applicant and did not accept that any of the applicant’s assailants were instructed to, or had the intention of, killing him[29]. The Tribunal found that the former clients wished only to demonstrate their anger through threats and intimidation and only ever intended to harass him[30]. The Tribunal also found that there had been no major incidents since mid-2010 because the former clients’ anger towards the applicant had subsided over time and they were not “lying in wait” for the day he returned to India[31].
[29] CB 110-111, [67]-[68]
[30] CB 111, [68]-[70]
[31] CB 111, [71]
In relation to the applicant’s alleged association with Lok Dal, the Tribunal did not find it “plausible” that any of his clients would know how he voted during elections. It found that the applicant was not at risk of any form of harm in India as a result of voting for Lok Dal[32]. The Tribunal also had regard to the fact that the applicant had confirmed at the hearing that “the only people he feared harm from in India were his former customers”. Accordingly, the Tribunal found that the applicant’s association with Lok Dal had no bearing on the former clients’ attitude towards him and no effect on any motivation they had to harm him[33].
[32] CB 112, [73]-[74]
[33] CB 112, [75]
The Tribunal accepted that if the applicant returned to India then there was a real chance and a real risk that those who had sought him in the past would come to know he had returned and would continue to harass, intimidate, and threaten him. It also accepted that, over time, such treatment could amount to serious harm or significant harm[34].
[34] CB 112, [72]
The Tribunal, however, found that any chance or risk of harm to the applicant was confined to his home area in particular and Haryana and Chandigarh more broadly[35]. Accordingly, the Tribunal found that the applicant’s fear of persecution was not well-founded as it would be reasonable for him to relocate within India to where there was no appreciable risk of serious harm[36]. In so finding, the Tribunal noted that the applicant had previously lived in both Korea and Australia, was well educated and a competitive job candidate[37].
[35] CB 113, [77]-[78]
[36] CB 113-114, [79]-[80]
[37] CB 113, [79]
Similarly, in considering whether the applicant met the complementary protection criteria, the Tribunal found that the applicant could relocate to where there would not be a real risk that he would suffer significant harm. Accordingly, the Tribunal found that s.36(2B)(a) of the Migration Act was engaged[38].
[38] CB 114, [80]
The present proceedings
These proceedings began with a show cause application filed on 21 December 2012. The applicant now relies upon an amended application filed on 24 May 2013. There are three grounds in that application:
1. 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.
2. 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 applicants 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.
3. The Tribunal has failed to investigate the applicant’s claim, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 27 November 2012 was effected by actual bias constituting judicial error.
Therefore the applicant submit that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant claims.
When challenged by me on the allegation of actual bias, the applicant withdrew that allegation. That withdrawal was proper, as there is nothing whatsoever to support an allegation of actual bias.
In his oral submissions, the applicant addressed the merits of the Tribunal decision. He disputes the Tribunal’s decision in two critical respects. The first is his assertion that there is a political connection to the harm he fears at the hands of his former clients. The Tribunal found his assertions in that regard in part not credible. The Tribunal decided it did not need to deal with the question of whether the applicant would be denied State protection. The applicant also disputes the Tribunal’s reasoning on the issue of relocation.
The Minister’s written submissions deal adequately with the grounds advanced in the amended application. I agree with those submissions.
Ground 1
The first ground of the application is a precedent ground of review in terms that the Court has seen many times before[39]. It contends that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act. No particulars are provided to make this ground meaningful and it is misconceived.
[39] See for example: SZQZH v Minister for Immigration [2012] FCA 1251at [18] per Foster J; SZROZ v Minister for Immigration [2012] FCA 843 at [16] per Gilmour J; SZQRD v Minister for Immigration [2012] FCA 874 at [26], [35] per Nicholas J
The Tribunal’s decision was made in compliance with its obligations under the Migration Act. The relevant statutory scheme that applies (s.65 and s.36(2) of the Migration Act) required the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s.36(2). That is, that the applicant met the definition of “refugee” as set out in the UN Refugees Convention, or that the applicant met the complementary protection criterion, such that in the circumstances a protection visa must be granted. The Tribunal properly referred to these provisions of the Migration Act and the relevant law in its decision record[40]. Subject to my observations below in relation to the Tribunal’s premature resort to a relocation finding, it correctly applied the statutory scheme in reaching its decision that it was not satisfied that the particular circumstances of this case warranted a protection visa be granted to the applicant. The facts that were put forward by the applicant did not cause the Tribunal to be satisfied pursuant to s.65 of the Migration Act as to the applicable criteria.
[40] CB 91-93, [4]-[18]
For the above reasons, Ground 1 is not made out.
Ground 2
Ground 2 alleges that the Tribunal ought to have reached the conclusion that the applicant was a refugee in circumstances where the Tribunal failed to given the applicant the “benefit of the doubt” where his claims were “plausible”.
Contrary to the applicant’s assertion, the Tribunal was not required to give him the benefit of the doubt[41], or uncritically accept any of his claims[42]. In any event, the Tribunal did give the applicant the benefit of the doubt and accepted aspects of his claims[43] but ultimately found that it was reasonable for him to relocate to avoid the harm he otherwise faced in his local area[44].
[41] SZHIS v Minister for Immigration [2006] FCA 1641 at [10]-[11] per Jacobson J
[42] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278
[43] CB 109, [61]; CB 110, [67]
[44] CB 113-114, [77]-[80]
The Minister contends that the reasonable possibility of relocation within India was relevant to the question of whether the applicant’s fear of being persecuted was “well-founded”[45] and whether there was a real risk he would face significant harm[46]. The Tribunal applied the correct test to determine whether it was reasonable, in the sense of being practicable, for the applicant to relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution taking into consideration the applicant’s particular circumstances and the impact upon him of relocation[47]. These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decision.[48]
[45] SZATV v Minister for Immigration (2007) 237 ALR 634 at [96]
[46] Section 36(2B)(a) of the Migration Act
[47] CB 113-114, pars 76-80; SZATV v Minister for Immigration (2007) 237 ALR 634; SZKDY v Minister for Immigration [2007] FCA 1667
[48] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 and 272
In substance, the applicant’s complaint in ground two is an expression of his dissatisfaction with the Tribunal’s factual conclusions but this approach impermissibly invites the Court to undertake a review of the merits of the Tribunal’s decision. Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that as the Tribunal failed to investigate the applicant’s claim of persecution in India its decision was affected by actual bias. As noted above, the applicant abandoned the bias claim at the trial.
Contrary to the applicant’s assertion in this ground, the Tribunal does not have any general duty to investigate the applicant’s claims or any duty to consider utilising such permissive statutory powers which might enable it to investigate[49]. This is not a case where there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained[50]. In any event, the applicant appeared before the Tribunal and the Tribunal engaged with him in an exploration of his claims[51]. Again, this complaint essentially invites the Court to review the merits of the Tribunal’s decision.
[49] VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]
[50] Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [25]-[26]
[51] CB 94-103, [23]-[40]
Further particulars in Ground 3 also assert that the Tribunal failed to properly analyse the future harm the applicant might face if he returned to India. A fair reading of the Tribunal’s reasons indicate, however, that the Tribunal correctly applied the “real chance” test when considering the applicant’s refugee claims. Again, the applicant’s complaint in this regard is essentially nothing more than an expression of dissatisfaction with the Tribunal’s factual findings which the Court has no power to review.
There is however, another issue which I explored with the parties during the course of argument. The Tribunal accepted at [68] of its reasons[52] the applicant’s allegations of past harm, although, the Tribunal rejected the contention that the applicant’s former clients wished to kill him.
[52] CB 111
The Tribunal made a forward looking assessment of the risk faced by the applicant at [72] of its reasons[53]. With reference to the applicant’s claim to be a refugee, the Tribunal found that over time in his home area, the applicant faced a well-founded fear of persecution. The Tribunal also found that the applicant would face a real risk of significant harm for the purposes of complementary protection.
[53] CB 112
The applicant made no claim to fear harm as a member of any particular social group. The only possible connection to the Refugees Convention was a political one. The Tribunal did not accept that the applicant would be harmed by his former clients for a political reason. It followed logically that the only possible connection to the Refugees Convention would be a denial of state protection for a political reason.
The Tribunal stated at [74] of its reasons[54] that in the light of its findings on relocation, it did not need to consider the issue of state protection; I disagree with that statement. In my view, the obligation on decision makers under the Migration Act in relation to a claim that a person is a refugee is to consider whether the applicant has a well-founded fear of persecution in his country of origin for a Convention reason. There are no shortcuts in that reasoning process.
[54] CB 112
I have said previously[55] that the essential steps in that reasoning cannot be avoided by resort to a relocation finding. In my view, the consideration of a relocation issue only arises where a decision maker finds that a person is a refugee in his or her country of origin. That conclusion can only be reached when all necessary steps in the reasoning process are taken.
[55] SZQMR v Minister for Immigration & Anor [2011] FMCA 992 at [38]-[46]; cf SZQMR v Minister for Immigration [2012] FCA 122 at [22]
In the circumstances it is arguable that the Tribunal committed a jurisdictional error by failing to consider the issue of State protection. However, although I have expressed that view previously, the position has changed since the amendment of the Migration Act to deal with complementary protection. Section 36(2B)(a) of the Migration Act provides relevantly, that there is taken not to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. The Tribunal expressly referred to that provision at [80] of its reasons[56]. There can be no doubt therefore, that in dealing with the issue of relocation, the Tribunal was intending to apply that provision of the Migration Act in relation to complementary protection. There is also no doubt that in respect of complementary protection, there is no issue of any Convention nexus. It is sufficient if an applicant is at real risk of significant harm. Accordingly, there was no impediment to the Tribunal dealing with the issue of relocation in relation to the claim for complementary protection[57].
[56] CB 114
[57] Having reviewed the judgment transcript following my delivery of oral reasons, I must concede that this reasoning does not take account of the impact of s.36(2)(aa) which makes clear that consideration of complementary protection is subject to the condition precedent that the applicant is not a refugee.
It follows in my view that if the issue of relocation is lawfully dealt with in relation to a claim of complementary protection, it can also independently support a decision on a claim for protection as a refugee. The relocation consideration by the Tribunal in this case is careful and comprehensive. I see no error in the Tribunal’s approach on that issue.
I conclude that notwithstanding the failure by the Tribunal to make a finding on the issue of State protection in relation to the refugee claim, the relocation finding of the Tribunal in relation to the protection visa claim generally supports the Tribunal’s decision[58]. I have in consequence decided that the application for judicial review should be dismissed, and I so order.
[58] VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33]
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,800. The applicant did not wish to be heard on costs. 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 $4,800.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 June 2013
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