SZSOP v Minister for Immigration

[2014] FCCA 771

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 771

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether applicant given opportunity to be heard in relation to all matters before Tribunal – whether Tribunal fell into jurisdictional error.

Legislation:  
Migration Act 1958 (Cth), s.36(2)(aa)

Abebe v Commonwealth (1999) 197 CLR 510

First Applicant: SZSOP

Second Applicant: SZSOQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 244 of 2013

Judgment of: Judge Raphael

Hearing date: 9 April 2014

Date of Last Submission: 9 April 2014

Delivered at: Sydney

Delivered on: 9 April 2014

REPRESENTATION

For the Applicant: First Applicant in Person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 244 of 2013

SZSOP

First Applicant

SZSOQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There are two applicants in this matter. They are husband and wife. They are both citizens of India. They made applications for protection visas on 8 February 2012.  On 17 May 2012 a delegate of the Minister refused to grant the protection visas.  They then applied to the Refugee Review Tribunal for review of that decision.  They attended a hearing before the Tribunal which they gave evidence and presented arguments in favour of their being granted a protection visa.  On 16 January 2013 the Tribunal determined to affirm the decision under review. 

2. The grounds upon which the applicants claimed they were persons to whom Australia owed protection obligations were twofold.  The first was that the wife had previously been married.  That marriage was celebrated in July 1998 and was dissolved in August 1998.  Her marriage to her current husband, the male applicant, took place on 13 May 2001.  The applicants claimed that the previous husband of the wife was infuriated by her actions and threatened both of them.  Coupled with this fear was the male applicant’s concern arising out of his membership and support of the Congress Party from violence and intimidation by what he described as goons from the BJP.  The male applicant also suggested that the wife’s former husband was associated with the BJP and was driving some of the intimidation that he claimed. 

3. The couple have two children. In 2008 they left India to go to New Zealand.  Notwithstanding the threats they allege were made against their children to be kidnapped they left them in India under the care of their parents.  The male applicant undertook an educational course in New Zealand and thereafter remained for two further years until 28 May 2012 under a work visa.  He left New Zealand to return to Gujarat in September 2011 and returned to New Zealand on 1 November 2011.  He remained there for two or three months and then came to Australia on 27 December 2011.  The reference to 28 May 2012 is a reference to the last date his New Zealand visa was valid.  During their time in New Zealand neither applicant applied for a protection visa from that country. 

4. The Tribunal questioned the male applicant upon his story.  His wife did not attend that hearing, neither has she attended today, but although she made claims of being harassed by her former husband, the form of her application is one as a family member of a primary applicant who has no individual claims to protection.  In its findings and reasons the Tribunal explains the views it has come to concerning the male applicant’s credibility and upon the seriousness of the claims themselves:

   “[53]The Tribunal is prepared to accept that the applicant wife had a brief and unhappy marriage to another man in 1998.  It accepts that the marriage ended and there was bad feeling on the part of the ex-husband towards her.  The Tribunal is prepared to accept that the former husband made threats against her soon after the marriage ended in 1998 as claimed.  However he did not carry out any of those threats.  The applicant wife then married the applicant in 2001.  The Tribunal is prepared to accept that even when the applicant married in 2001 the former husband continued to demonstrate his anger.  It is prepared to accept that at that time he made verbal threats against the applicant and the applicant wife. 

   [54]The Tribunal finds that the harm the applicant claims to fear in India at the hands of his wife’s former husband is due to a private and personal matter namely the breakdown of the marriage.  No Convention ground is the essential and significant reason for the particular harm the applicant claims to fear from the particular individual” [ CB 134]

5. This disposes of the claim arising out of fear of the ex husband.  There is no claim made that, for convention reasons, the parties are not able to access State protection.  In regard to the political claims the Tribunal states:

   “[55]The Tribunal accepts that the applicant was a supporter of the Congress Party in his local area.  It accepts that he and other members and supporters of Congress experienced harassment from members and supporters of the opposing BJP during the exuberance of election campaigns. … The Tribunal accepts that the applicant faced low level harassment from his political adversaries in the BJP because of his support for the Congress Party.  It accepts that demands of money were made of him and other businessmen from time to time.  The Tribunal finds that the applicant negotiated these factors as part of his political and business activities.  His evidence indicates that he nevertheless continued to run his business; he had a family and he continued to live in the family home up until 2008 when he and the applicant wife left for New Zealand.  In 2007 he and his wife made a holiday trip visiting Malaysia, Singapore, Hong Kong, Indonesia and China and at the end of the trip they returned to the family home. … The applicant’s actions over this period strongly suggest and the tribunal finds that notwithstanding minor harassment and issues associated with his support for Congress Party the applicant did not suffer serious harm for reasons of his political opinion from the time of his marriage in 2001 up until the time he left India for New Zealand in 2008.  The Tribunal considers that had he faced and feared actual harm in that period he would have at least moved from the family home or he and his wife would not have returned there after their visit to other Asian countries in April 2007.”  [CB 134]

6. The Tribunal had other reasons for making its finding that the applicants had no well founded fear of persecution.  It had concerns about the fact that, although the children were said to be under threat of kidnapping, they remained in India and that the applicant and his wife had stayed in New Zealand for three years without making a protection visa application and had returned to India before coming to Australia.

7. The Tribunal considered the applicant’s claim under the provisions of s.36(2)(aa) of the Migration Act 1958 (Cth) for complementary protection but was not satisfied that they would suffer significant harm though should they be returned to India now or in the reasonably foreseeable future.

8. On 11 February 2013 the applicant filed an application with this court seeking review of the decision of the Tribunal.  There were three grounds of application.  The first was:

   “1.The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant does not genuinely fear harm in India, either from his wife’s former husband or from the BJP, and no serious threat of harm has been made against the applicant’s children, being conclusions that were not obviously open on the known material, without giving the applicant an opportunity to be heard in respect of those matters.”

9. This is quite simply factually incorrect.  The conclusions were open on the known material because the known material was the material provided to the Tribunal by the applicant.  To the extent that no other material was provided that is the fault of the applicant and not of the Tribunal.  It is the applicant’s duty to make his own case; Abebe v Commonwealth (1999) 197 CLR 510. The applicant was clearly given an opportunity to be heard in respect of all matters that he put before the Tribunal as indicated in the decision record.

10. The second ground of application is:

    “2.The Tribunal had not jurisdiction to make the said decision because its reasonable satisfaction (sic) was not arrived in accordance with the provisions of the Migration Act”.

11. Although the applicant was given an opportunity after a directions hearing to provide an amended application which might have explained this rather opaque ground or provide particulars of it, he did not do so.  He appeared in court today and did not mention it.  The court is satisfied from the decision record that the Tribunal’s failure to come to a decision of reasonable satisfaction with the claims made by the applicant was due to the insufficiency of the claims, in particular the fact that the claim relating to the former husband being not convention related.  To the extent that it might be suggested that the Tribunal failed to look at that claim through the prism of the political claim as suggested by the applicant, it seems to the court that the Tribunal’s views regarding the political claims, namely that they did not reach the level of serious harm covers this aspect of the matter.

12. The third ground was:

    “3.The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claims.  The Tribunal did not consider that that applicant who had been under immense and intimidating pressure from Hindu nationalist party BJP because of his support for Congress party”.

13. Whilst this is in reality a claim for a merits review that is not permitted in this court, it should be stated that the Tribunal did consider the applicant’s claims in regard to the BJP and came to the view that the applicant had no well founded fear of persecution from them firstly because of the nature of the alleged harm which it did not regard as serious and the applicant’s own conduct in not applying for a protection visa at an early opportunity in New Zealand and returning to India, a country he now says he fears to step ashore upon.

14. For all the above reasons the application must be dismissed.  The applicants shall pay the first respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  15 April 2014