SZNZB v Minister for Immigration & Anor [2010] FMCA 47 (27 January 2010)

Federal Magistrates Court of Australia

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SZNZB v Minister for Immigration & Anor [2010] FMCA 47 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 47

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 411, 412

Applicant:

SZNZB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2515 of 2009

Judgment of:

Driver FM

Hearing date:

27 January 2010

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight Australian Government Solicitor

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2515 of 2009

SZNZB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 22 September 2009. 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 political and religious persecution.
2. Background facts relating to the applicant’s circumstances, his protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister’s outline of written submissions filed on 22 January 2010. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 15 of those written submissions:
   • The applicant is citizen of India from the Punjab. He is 37 years old and recently divorced (January 2009). He was employed as a farmer. He previously visited Australia for around three months in June to September 2008. After arriving most recently on 12 February 2009, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship on 25 March 2009.
   • A delegate of the Minister refused the application on 5 June 2009. On 3 July 2009 the applicant applied to the Tribunal for review of the delegate's decision. The applicant attended a hearing before the Tribunal on 3 September 2009.
   • On 22 September 2009 the Tribunal wrote to the applicant enclosing its decision affirming the delegate's decision.
   • Claims
   • The applicant claimed to be a prominent and active member of the Dera Sacha Sauda (DSS). For this reason he claimed to fear persecution from Sikhs, the Indian police and Indian authorities.
   • The applicant claimed to have joined the DSS ten years ago and was baptised in 2007. He claimed that Sikhs hate him and have threatened that if he does not leave the village they will kill him and his family.
   • He claimed that in 2004 he was falsely charged in four criminal matters due to the influence of Akali Dal with the police. He was threatened 3-4 times. He was apprehended and beaten up by police 3-4 times between January - March 2004.
   • The applicant has siblings who live in India, Germany, the UK and Italy. He claimed that in 2005 he travelled to the UK to save himself and his family but was told that the situation in India had returned to normal. He returned to India after three months. He then found he was on a "hit list" of Sikh extremists and authorities.
   • In November 2008 the applicant was physically attacked by a group of Sikhs who blindfolded him and took him to an unknown place at which time he was warned to leave the DSS. The applicant refused and they threatened to kill him. He was assaulted with sticks and batons. He was released on condition that he leave DSS within a month.
   • The applicant visited Australia from June to September 2008 but thought that the situation had returned to normal, so he returned. However, after the November 2008 incident he became frightened and left India to save his life.
   • Tribunal decision
   • In summary the Tribunal did not accept that the applicant was involved in the DSS to the degree claimed, although it accepted that he had some association with the DSS and may have occasionally attended meetings and assisted with collecting donations. It did not accept that he was a prominent member or that he was ever harmed because of his association with the DSS or that he was implicated in false cases. The Tribunal also did not accept that the applicant feared harm from Akali Dal or any persons who oppose his membership of the DSS. The Tribunal did not believe that the applicant had given a truthful account of his experiences in India or his reasons for leaving India.
   • Most importantly, the Tribunal made the following findings.
     • a) The applicant's evidence regarding his lack of attempt at finding and becoming involved in the DSS in Australia is not indicative of any commitment to that religion/organisation. The Tribunal did not accept the applicant's explanations for not doing so.
     • b) The Tribunal found the applicant's account of the actions he took following the alleged November 2008 assault by 15-20 persons implausible. The fact that he would stay only three kilometres from his home for some 2-3 months and the fact that he preferred to stay to complete his divorce settlement in order to obtain a more favourable division of property, rather than leave India when he had a current valid visa for Australia was not indicative that the applicant was in fear of serious harm.
     • c) The Tribunal found the applicant's account of the 2004 incidents lacked credibility. It rejected the applicant's claim to have incurred false charges as a result of Akali Dal's influence in light of the applicant's own evidence of a very low degree of involvement in the DSS at the time. Nor had the applicant attempted to seek protection in the UK during his visit in 2005. The Tribunal was not persuaded by the applicant's explanation for not seeking protection and returning to India, that he had heard from his parents that the situation had changed. The applicant was unable to give any reason why his parents might be in a position to know that circumstances had changed.
   • The Tribunal accepted that the applicant may choose to have some involvement in the DSS upon return to India and relied upon country information ([46] of the decision) to find that this would not result in a real chance that the applicant would suffer serious harm in the Punjab upon his return.
   • Furthermore, the Tribunal relied upon country information and the applicant's own evidence to find that the applicant, if he did not wish to return to the Punjab, could avoid any real chance of persecution if he were to become involved in the DSS by relocating to another State, especially States in which the Congress Party is in power.
   • Therefore, the Tribunal was not satisfied the applicant faced a real chance of serious harm in India for reason of his membership of the DSS or other Convention related reason.
3. These proceedings began with a show cause application filed on 16 October 2009. The applicant continues to rely upon that application. There are three grounds in the application:
   • 1. That the Member of [the Tribunal] did not observe procedure under Migration Act.
   • 2. That the Tribunal Member did not act according to justice and the merits of the case.
   • 3. That the Tribunal member did not have the jurisdiction to make the decision.
4. The grounds are unparticularised. The application is supported by an affidavit. I accepted paragraphs 1 and 2 of the affidavit as evidence and the remainder as submissions. I also have before me as evidence the book of relevant documents (“CB”) filed on 26 November 2009. I also have the Minister’s outline of written submissions filed on 20 January 2010. The applicant denied receipt of those submissions, but I adjourned while they were read to him by the interpreter and he confirmed that he had understood them.
5. The applicant made only brief oral submissions. He observed, correctly, that he was in key respects not believed by the Tribunal. He was concerned that he was not believed. He asserts that his fear of returning to India is genuine and well-founded. He referred to ongoing problems confronting his family, including the apparent death of a cousin recently. I informed the applicant of the opportunity for him to refer to the Minister’s Department any developments having a bearing on his protection visa claims since the Tribunal decision.
6. Based upon the available material, I am not persuaded that the applicant has identified any arguable case of jurisdictional error by the Tribunal.
7. The applicant asserts that the Tribunal did not observe procedures required under the Migration Act 1958 (Cth) (“the Migration Act”), but in the absence of particulars the ground has no force. On my own perusal of the book of relevant documents it appears to me that the Tribunal met its obligations under the Migration Act, in particular its obligation to invite the applicant to appear at a hearing which the applicant attended. The hearing opportunity appears to have been a real one.
8. The applicant also asserts that the Tribunal did not act according to justice and the merits of the case. On the basis of the applicant’s affidavit and oral submissions, it is apparent to me that he is concerned with the outcome of his case before the Tribunal, rather than the process that was followed. The claim does not rise above an argument over the merits of the Tribunal decision. Those merits are beyond the scope of this review.
9. Finally, the applicant asserts that the Tribunal did not have jurisdiction to make its decision. I reject that contention. The Tribunal correctly found that the decision of the delegate was reviewable pursuant to s.411(1)(c) of the Migration Act and the application made to the Tribunal was validly made under s.412. There was, in my opinion, no constructive failure on the part of the Tribunal to exercise its jurisdiction. The Tribunal plainly understood the applicant’s claims and dealt with them fairly and comprehensively.
10. I note that at paragraph 80 of its decision (CB 104) the Tribunal refers to the applicant’s lack of any involvement, or attempts at involvement, in the Dera Sacha Sauda Movement in Australia and found that that lack of involvement was not indicative of any commitment to the religion which the applicant claims to adhere to. It is arguable that a failure to engage in conduct may be conduct to which s.91R(3) of the Migration Act applies. However, it is now clear that the Tribunal was entitled to take into account such a failure on the basis that the failure to engage in that conduct did not, and was not intended to, support the applicant’s protection visa claims. I see no arguable case that the Tribunal breached s.91R(3) of the Migration Act in the manner in which it dealt with the applicant’s conduct or lack of conduct in Australia.
11. I also note that at paragraph 87 of its reasons (CB 106), the Tribunal considered the possibility of the applicant relocating within India. In my view this was a secondary finding and not strictly necessary for the purposes of the Tribunal decision, as the Tribunal had already found that the applicant was not at risk of persecution on the basis of his claims in his home state of Punjab. In my view, no arguable case of jurisdictional error arises from the Tribunal’s consideration of the internal flight option.
12. The applicant had asserted interpretation problems at the interview conducted by the Minister’s Department. The Tribunal prudently listened to the sound recording of that interview and satisfied itself that there were no interpretation problems of significance. The Tribunal went further and, for an abundance of caution, did not rely upon inconsistencies between the applicant’s evidence to the Tribunal and his evidence to the Department. The Tribunal’s approach was cautious, proper and reasonable.
13. I conclude that there is no arguable case of jurisdictional error by the Tribunal in this matter. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
14. The application, having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,935. 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 in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

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

Associate:

Date: 28 January 2010