SZMFY v Minister for Immigration & Anor [2008] FMCA 1609 (24 November 2008)

Last Updated: 11 December 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1609

MIGRATION – RRT decision – Indian applicant claiming political and religious persecution as member of BJP in Gujurat – Tribunal found that state protection would be available – no jurisdictional breach of procedures under s.424AA or 424A – no other jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 424A

SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZMDJ v Minister for Immigration [2008] FMCA 1298

Applicant:

SZMFY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1199 of 2008

Judgment of:

Smith FM

Hearing date:

24 November 2008

Delivered at:

Sydney

Delivered on:

24 November 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr J Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1199 of 2008

SZMFY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in October 2007, and on 13 November 2007 he lodged an application for a protection visa. The application claimed that the applicant feared return to India for “political persecution”, but did not provide details of any history upon which this claim was made. The applicant’s signature on the declaration was not witnessed by a justice of the peace, and the application was suspected of being completed with the assistance of an undisclosed migration agent. However, the applicant in an interview denied the latter, and his application was rectified, including by the forwarding of a typed statement.
2. In his statement, the applicant said that he came from a village in Gujarat state, and that he had been “a social worker of my area of the political party BJP since last 10 years”. He claimed that he received “lots of calls of threats of kill me and my family” following riots after the Godhra train incident. More threats were received after “logging complaints in police”, and he had to move his children back to his own village from their schools in Ahmedabad and Gandhinagar. He said that, on an undisclosed occasion, he was suddenly attacked by two people when he was travelling with his wife on a motorbike. He reported this to a police station. However he was “scared for me”, and decided to come to Australia, leaving his family in India.
3. A delegate refused the application on 7 January 2008. The delegate thought that the “considerable lack of detail in the applicant's statement makes the veracity of his whole claim doubtful”. The delegate also referred to the fact that the BJP was highly influential in the applicant's state of Gujarat, and said:
   • The police in Gujarat are known to favour the BJP and other pro-Hindu elements in the state. It is therefore almost incredible that an active BJP member would not be able to obtain protection from the police when attacked by anti-BJP elements.
4. On appeal, the applicant attended a hearing held by the Tribunal on 13 March 2008. A transcript is in evidence. I have read it, and it confirms the description given by the Tribunal in its statement of reasons. Neither party referred me to any particular passages in the transcript relevant to the grounds of review which I shall consider below.
5. At the hearing, the applicant told the Tribunal that Muslims in a village about four kilometres from his own village had been attacked by Hindu supporters in the Godhra riots in 2002. He had then been threatened on the phone many times, and blamed for the attacks. He had to disconnect his phone six to seven months later, in 2003. He reported the people who had been threatening him to police, but the police did not do anything, and suggested that the threats would stop.
6. The applicant also told the Tribunal about an incident not previously referred to by him. This occurred in 2006 when he was attacked when living in Ahmedabad. He said he did not report that incident. He also gave details of the attack referred to in his original statement, which he said occurred in August 2007. However, there were some inconsistencies in his narration as to how many people attacked him and his wife, and how the incident was reported to the police. The applicant claimed to have signed an information report at the police station, but he later made no inquiries as to what happened in the investigation and was unaware of its outcome.
7. At the end of the hearing, the Tribunal referred the applicant to areas of concern as to the credibility of his claims, and also to the prospect that he would obtain protection from threats if he returned to Gujarat. The applicant was invited to comment.
8. He offered to obtain proof from India in relation to his withdrawal of his children from their schools in 2003, the first information report given to the police in 2007, and documents showing his position in the BJP party. However, the Tribunal indicated that it did not feel that he should be given time to present that material. It said at transcript p.33:
   • I’ve explained to (you) why I don’t think it’s necessary for me to delay my decision for that, those documents, because I don’t think they’ll add any more to what you’ve told me and they don’t actually deal directly with my concern about the inconsistencies in your statements. They don’t also deal with the country information that tends to indicate that because you’re a Hindu and a (applicant’s surname) you are more than likely to obtain protection from the police. And Mr Patel has been returned to power in December with a very strong majority, nearly two – thirds.
9. The Tribunal also put to the applicant that he could live elsewhere in India, but ultimately it did not refer to that issue in its reasoning.
10. The Tribunal's decision was handed down on 22 April 2008. It affirmed the delegate's decision.
11. In its decision, the Tribunal considered the applicant's claims, and accepted that he had received threats in his village at the time of the Gujarat riots in 2002 and that these had continued until early 2003. However, it was not satisfied that there was a real chance that verbal threats would occur again if the applicant returned to India.
12. The Tribunal then considered the applicant's claims to have been assaulted in September 2006 and August 2007. It noted that the former incident had received no mention in the statement provided to the Department, and it concluded that this suggested that it was a recent invention. In relation to the second incident, the Tribunal referred to inconsistencies in the applicant's evidence, and found some aspects of his account “hard to believe”. The Tribunal did not accept that the applicant had been truthful in relation to both incidents, nor that either of them occurred. However, it said that it would “give the applicant the benefit of the doubt and accept that the (second) incident occurred”.
13. The Tribunal referred to country information, which it said: “indicates that the applicant is a member or former member of the BJP, a Hindu, and a (applicant’s surname) would obtain support and assistance from the police if he had been attacked as claimed and if the police were able to do so”. The Tribunal concluded that protection would not be refused or withheld for a Convention reason, and it found positively that “if the applicant were to return to India in the reasonably foreseeable future he would continue to be able to obtain the police support and assistance”.
14. It therefore found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason “as he is not unwilling or unable to avail himself of the protection of” the Republic of India.
15. The applicant filed an application to the Court on 12 May 2008, which does not disclose the person or persons who assisted him. It contains several grounds which I shall address below. The applicant then employed a solicitor, who filed an amended application on 17 July 2008. The solicitor’s appearance continues on the Court's record, although he recently told the respondents’ solicitor that he had instructions no longer to act for the applicant. The applicant confirmed this today to me. In these circumstances, it is appropriate for me to address the grounds of review raised in both the original application and the amended application.
16. Both applications ask the Court to set aside the Tribunal's decision and to remit the matter for further consideration. However, I do not have power to do this unless the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee, nor whether he is entitled to a protection visa or any other permission to stay in Australia.
17. The original application contains three unnumbered grounds which are explained in particulars to each. The first ground suggests that the Tribunal made an error of law by considering whether the persecution claimed by the applicant was “solely” for a Convention reason. However, I am unable to detect any support in the Tribunal's reasoning for such an argument. I am not persuaded that the Tribunal made that error. Indeed, a characterisation of the reasons for the harm feared by the applicant did not form any part of the reasoning of the Tribunal.
18. The second ground also appears to come from a precedent having no bearing on the Tribunal's reasoning. Its particular (a) refers to the High Court's decision in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 concerning principles of relocation. However, the Tribunal did not apply those principles in this case, since it considered that the applicant could return to Gujarat without fear, and could there receive protection from the police from any threats.
19. Particular (b) of the second ground is incomprehensible to me.
20. There is no particular (c), and particular (d) contends that the Tribunal: “did not ask if protection would be available for the type of persecution he complains of and subsequently whether there were selective and discriminatory enforcement in that regard.” This appears to contend that the Tribunal failed to address whether protection against the persecution which the applicant claimed to fear would be withheld by the Indian government for discriminatory reasons, or that it would be unable to protect the applicant from persecution. However, I cannot detect any errors in the Tribunal's reasoning concerning these matters. The Tribunal addressed the applicant’s fears on the assumption that the most recent incident had occurred. It then found that the applicant would ‘obtain’ police support and assistance in relation to further incidents or threats. In my opinion, the Tribunal's reasoning concerning the availability of State protection does not disclose the errors contended.
21. The third ground of the application is misconceived, since it challenges the application of principles of relocation, which was not part of the reasoning followed by the present Tribunal.
22. The applicant's amended application filed by his solicitor contains one ground, which is that the Tribunal “failed to comply with a mandatory procedure prescribed by the Act, in failing to comply with s.424AA(b)(iv) of the Act”.
23. That subparagraph applies when the Tribunal exercises a power orally to give the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It is obliged to identify the particulars, invite the applicant to comment, advise that he or she may seek additional time and adjourn the review, and:
    • (iv) if the applicant seeks additional time to comment on or respond to the information–adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
24. In the present case, as I have indicated, the applicant sought additional time to submit proofs from India in relation to three matters, and this was declined by the Tribunal.
25. The amended application takes issue with the Tribunal's opinion that this was not “reasonably needed” by the applicant. As I have narrated above, the Tribunal explained to the applicant why it did not regard these suggested proofs as addressing its concerns, and ultimately its decision did not rest upon a disbelief of the applicant concerning the matters. Prima facie, it is difficult to identify any jurisdictional defect in the Tribunal’s opinion under s.424AA(b)(iv).
26. However, in my opinion, I do not need to address that issue, since I accept two of the responses presented by the Minister's counsel. The first response challenges whether the Tribunal was under any obligation to put to the applicant, whether orally or by way of a written invitation, any particulars of information so as to avoid a jurisdictional error which could arise from a failure to comply with the requirements of s.424AA.
27. As the Minister's Counsel submits, current authority in the Federal Court holds that the procedure under s.424AA can only give rise to jurisdictional error if s.424A(1) would have been engaged. I explained in SZMDJ v Minister for Immigration [2008] FMCA 1298:
    • [21] The second ground of the application contends that the Tribunal failed to comply with obligations under s.424AA. As counsel for the Minister points out, a recent decision of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 exercising the appellate jurisdiction of the Federal Court has held, in paragraphs [23]-[27], in effect, that s.424AA is not a self-standing procedural provision, such that any non-compliance gives rise to jurisdictional error vitiating a decision of the Tribunal. His Honour appears to have concluded from legislative history that the intended consequence of any non-compliance with s.424AA is only that s.424A(2A) will not apply to excuse a procedure under s.424A(1), whether the non-compliance arises from a discretionary decision not to follow the s.424AA procedure or from defects occurring in the procedure when purportedly followed. On this construction, the s.424AA procedure operates only as an embellishment or qualification to obligations under s.424A(1). Counsel for the Minister noted that this construction has been applied in several cases in this Court, and I consider that I should do likewise.
    • [22] The construction has the consequence that, even if there were any failure to follow procedures described in 424AA, it would also be necessary to establish that the Tribunal’s decision relied upon some piece of information which would have been required to be put to an applicant under s.424A(1) for written comment. It also means that the exclusions of s.424A(3) therefore also apply as exclusions to any jurisdictional requirement to observe s.424AA as an alternative to the procedure under s.424A(1).
28. In the present case, the information which was put to the applicant pursuant to its purported s.424AA procedure was, in my opinion, clearly information which was excluded from obligations of a written or oral invitation to comment, by effect of s.424A(3)(a), (b) and (ba). Section 424A(1) also imposed no jurisdictional obligation on the Tribunal to invite the applicant to respond to its foreshadowed possible reasoning processes, concerning issues which were apparent in the nature of the review proceeding. I therefore accept the Minister's submission that, if any failure of procedure under 424AA occurred, it did not have jurisdictional consequences.
29. I also accept that any failure was of no material consequence to the Tribunal's ultimate conclusion. The Tribunal did accept that the applicant had brought his children home from school in 2003, and that the applicant had an association with the BJP. Its reasoning also proceeded upon the basis that there was sufficient doubt about its rejection of the claimed 2007 incident, and assumed that there had been a complaint to the police as claimed. Any failure by the Tribunal to allow more time to the applicant to get more proofs of these matters from India could therefore have made no difference to the outcome. I therefore consider that the Tribunal's decision was independently supported, and was unaffected by any procedural error referable to ss.424AA or 424A (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 639 at [28], [55]-[59], and [91]).
30. For the above reasons, therefore, I am not persuaded that any of the grounds of review presented by the applicant in his original application or his amended application are established. I am not otherwise satisfied that the Tribunal's decision was affected by jurisdictional error.
31. The applicant had no written or oral submissions today to develop any of the documents he has filed, and did not present any additional ground of review. I must therefore dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 3 December 2008