WZAQX v Minister for Immigration
[2012] FMCA 1058
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAQX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1058 |
| MIGRATION – Judicial review – Refugee Review Tribunal. |
| Applicant: | WZAQX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 60 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 13 November 2012 |
| Date of Last Submission: | 13 November 2012 |
| Delivered at: | Perth |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First and Second Respondent | Ms N Johnson |
| Solicitors for the First and Second Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 60 of 2012
| WZAQX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore reasons)
The Application
This is an application for judicial review of a decision of the Refugee Review Tribunal. The Applicant is an Indian citizen of Hindu religion. He came to Australia on 12 December 2008. The Applicant initially entered Australia on a Higher Education Sector TU temporary visa as a dependent spouse of the primary visa holder, his then wife.
The education visa was cancelled on 12 October 2011 when it was found that the Applicant had ceased to be in a relationship with his then wife. The Applicant’s application to the Migration Review Tribunal for review of the decision to cancel that visa was not successful.
Subsequently, the Applicant’s request to the Minister to intervene on the Applicant’s behalf was also declined. The Applicant then applied for a protection visa on 8 June 2011. The Applicant’s claim for protection is, in substance, that if he returns to India he will be at risk of harm from his former wife’s family. The Applicant stated that he travelled to Australia with his wife so that she could pursue a higher education. After arriving in Australia, the marriage broke down and the couple divorced. The Applicant’s dependant student visa was then cancelled.
The Applicant claimed that his former wife’s family were looking for revenge and that they regard him as an enemy of their family and may try to harm him. He said that threats were made to his mother “[t]o shoot [him] in front of [his parents]”and that the threats were ignored when his mother reported them to the police due to a lack of evidence. The Applicant also claimed that his ex-wife’s family has “a good political relationship with the ruling party”.
In its decision, the Tribunal affirmed the decision of the delegate to refuse the applicant’s application for a protection visa. The Tribunal ultimately concluded:
42. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a) for a Protection Visa.
In its reasons for refusing the application, the Tribunal made adverse findings in relation to the Applicant’s credibility. At paragraph 37, the Tribunal said:
37. The Tribunal is not satisfied to the required degree that the applicant or any member of his family has been threatened or harmed in any way by any members of his former wife’s family, or by anyone acting on their behalf, or that he faces a real chance of serious harm in India. The applicant’s claims and statements at various stages of the application and review processes in relation to the dates on which the alleged threats began and ended, the factors giving rise to them, to whom they were conveyed, at whom they were directed and similar basic matters were, as the above narrative demonstrates, irretrievably inconsistent, self-contradictory, opportunistic and irretrievably implausible. The applicant’s failure to mention the alleged assaults on his brother and on another occasion, an unidentified friend, by an unidentified uncle of the applicant’s ex-wife provide striking illustrations of these deficiencies. As well, the applicant’s 18 month delay in mentioning the threats (and indeed, cited for the first time in a Protection Visa application lodged after all other efforts to remain in Australia had failed points to their being fabricated in a calculated effort to remain in Australia, and like the applicant, as altogether without credibility.
The Tribunal also rejected the Applicant’s witness. The Tribunal then gave reasons for refusing the application for a protection visa even if the allegations made by the Applicant were accepted. The Tribunal found that the alleged threats were not made for a convention reason and any refusal by the Indian authorities to protect the applicant would not be for a convention reason. The Tribunal said they were not satisfied:
39. … to the required degree that, even if the applicant’s claimed threats had occurred as he claims, they were made for any Convention reason. While the applicant alluded briefly and darkly to the alleged political connections of his unidentified uncle, there was no claim or evidence that political opinion, actual or imputed, had any bearing whatever on the alleged threats, even if that the claim were taken seriously. The Tribunal finds that the essential and significant reason for any harm allegedly feared by the applicant is a family dispute over a failed marriage, and about deception on the part of the applicant, neither of which is a ground countenanced by the Convention. The Tribunal finds no credible evidence or claim of any threat of harm that might plausible be termed “honour killing”, nor that the applicant has any claim to being a member of a particular social group that is subject to actual or threatened serious harm. Nor does the Tribunal accept that the harm allegedly feared by the applicant arises from or relates in any way to differences of caste or class or to questions of consanguinity, noting that the marriage was supported by both families.
40. …even were the applicant to the experience any harassment or threatening behaviour from his former in-laws, he could not obtain effective protection from the Indian authorities, nor that such assistance would be denied for any Convention reason. Whilst there is ample evidence that official corruption is widespread in India, independent country information points to sustained and increasingly effective measures being adopted by the central and state governments to eradicate corrupt practices, and the dysfunctional institutional to suppose that whatever corruption that remains would in any way impinge on the applicant’s chances of obtaining official protection if required. Nor is there any credible evidence before the Tribunal that the applicant has sought, or even seriously examined the possibility obtaining, official protection. His failure to do so casts even greater doubt over his claims to have been threatened, and exposes his alleged doubts regarding the availability of adequate protection by the authorities as threadbare. The Tribunal notes in this connexion the applicant’s admission at the hearing that his mother had experienced no harm in her home village because she was surrounded by people, and sees no reason why the applicant should not equally find refuge in the same collective security.
Judicial Review application
The Applicant filed an application for judicial review in this Court on 15 March 2011. His application contains 2 grounds.
Ground 1 of the application
Ground 1 says:
The Tribunal stated “The Tribunal is not satisfied… threats… were made for any Convention reason” (RRT-p7 at [39]). The Tribunal denied applicant procedural fairness thereby committing jurisdictional error.
The key findings of the Tribunal, that the alleged threats were not made for a convention reason, are contained in paragraph 39, set out above. The Tribunal set out that they explained the convention issue to the applicant at paragraph 22 of their decision. The Tribunal records in their reasons that the applicant said he understood. The Tribunal also stressed that his credibility would be under close scrutiny. This issue was also raised before the delegate at paragraph 69. The delegate, in the delegate’s decision, records:
I put to the applicant that this was a family dispute and not Convention related issue. The applicant replied “yes I understand that you say that it is a family dispute hose life is in danger it’s mine, whose got the connection with the politicals it’s them, whose getting the threats it’s me.”
The delegate further addressed the issue at paragraph 70:
I put to the applicant that the only reason there was a dispute between the families was failed financial arrangement. The applicant was evasive in answering the question “In Australia it is easy for a girl and a boy to fall in love, they can love, they can love easily there is no political party involved in that.” He went on to say “the main point I want you to know, in India it’s not easy it’s honour of the family, if a girl and boy fall in love [sic] comes under the honour of the family.” The applicant stated that he had an arranged marriage. “Because of honour they can kill people in India.”
Whilst orders were made for the filing of a transcript and any other evidence that the Applicant may wish to rely upon, the Applicant has not filed a transcript or even a tape recording of the hearing.
On the material before me, I am not persuaded that the Tribunal failed to consider this issue. I am not persuaded that the Applicant was denied procedural fairness, as this issue must have been apparent to him from the delegate’s decision and the discussion with the Tribunal member.
In any event, in this case, the Tribunal found that it was not satisfied of the threats as set out in paragraph 37 of its decision (see above), so the Applicant would fail in his application in any event.
Ground 2 of the application
Ground 2 of the application is in the following terms:
The Tribunal committed jurisdictional error when it stated that the applicant were able to internally relocate in India (RRT Decision, p7 at [41]). The Tribunal erred in failing to take into account all the factors affecting the Applicants (or failing to take into account a relevant consideration) and whether the Applicants could relocate in practical sense which has formed overall assessment of whether there was a real chance of harm.
The key findings of the Tribunal that the applicant could relocate within India are contained in the decision where the Tribunal says at paragraph 101:
41. Moreover, the Tribunal finds that, even if the applicant were threatened and unable to avail himself of official protection locally, he is easily capable of relocating to another area of India where his alleged enemies would be unable to locate him, and his safety would be assured. Indeed, given his background, age and education, it seems to the Tribunal most unlikely that this would have been the course he would be inclined to follow in any event.
The Tribunal’s findings in this regard are supported by its discussion:
29. The Tribunal asked what exactly he and/or his family had done in response to these alleged threats, and what protection, if any, they had sought. The applicant said that his mother was safe because she had lived in a village and there were always people around. The Tribunal observed that he, too, would presumably be in the same village, deriving the same collective security benefits. The applicant, somewhat improbably, answered that he could hardly be expected to remain indoors all the time. The Tribunal observed that his mother apparently managed to get by. Asked what he had done about the threats, the applicant said that there was no point telling the Australian police, because “they could do nothing.”
30. …
31. …
32. … The Tribunal asked what his mother had done in response to the threats. The applicant said that she had tried to report them to police, but “they were told by a politician not to accept the complaint.” Asked how he could possibly know that, he replied that his mother had told him, and that everyone knows about corruption in India. He blustered once again, finally opining that “they might have bribed the police”.
I am not persuaded that the Tribunal failed to properly consider this issue. It appears to me that this decision was open to the Tribunal on the material before it. It is not appropriate for me to engage in a merits review of the Tribunal’s decision. In the circumstances, the Applicant must fail on this ground.
The Applicant also confronts the same difficulty as with the previous ground that the Tribunal rejected in his primary claim. Thus this ground would also fail for the same reason.
Ground raised at Hearing
At the hearing of the matter, the Applicant raised a third ground. He alleged that the Tribunal failed to have regard to the evidence of a witness that he called. The Tribunal discusses a witness who gave evidence on behalf of the Applicant at paras.33 to 35, saying:
33. As the hearing was being wound up, the applicant announced that he had a witness to the threatening telephone calls, who was waiting outside. The Tribunal agreed to hear him.
34. The witness was someone named Sanjeev, who claimed that he had visited the applicant’s home between June 2010 and November 2010, about twice a week, and had overheard the applicant receiving phone calls from his in-laws on about 7 occasions. The Tribunal asked how he knew this; had he overheard the callers and/or the alleged threats? He said he had not; the applicant would tell him about the calls after hanging up.
35. The Tribunal asked whether the applicant had mentioned this alleged witness before at any stage. He said he had not. The Tribunal expressed astonishment at this oversight, given the centrality of these alleged threats to his case, and observed that the delay cast doubt over the veracity of his witness’ testimony. The applicant said that Sanjeev had been overseas. The Tribunal dismissed this response as inadequate and disingenuous in the extreme.
At the hearing, I adjourned briefly to allow the interpreter to read these paragraphs over to the Applicant. The Applicant then submitted that the witness’ name was Rajiv and not Sanjeev. There does not appear to have been any real confusion, in that there was only one witness. The only confusion, if the Applicant is correct, is a misnomer: calling the witness Sanjeev instead of Rajiv. It is not surprising that in a hearing involving an interpreter there may be some confusion with respect to two similar-sounding names.
The Applicant also made submissions that the evidence given was different to the version recounted by the Tribunal in the decision. In the absence of a transcript or a copy of the audio recording, the only appropriate evidence before me is the decision record, and I am not persuaded that it is in error.
In these circumstances, it does not appear to me that this further ground can succeed.
As the applicant has not established a ground for judicial review, I therefore dismiss the application.
[further argument ensued]
Costs
In this case, the Applicant has been entirely unsuccessful. The Minister seeks costs, fixed at $5400.
As the Minister has been entirely successful, it is appropriate that the Minister should have his costs. The amount sought is less than the scale fee. This is appropriate because the Minister did not brief a barrister for today. I therefore find that the amount sought of $5400 is reasonable.
I order that the applicant pay the Minister’s costs, fixed at $5400.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 7 December 2012
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