SZADJ v Minister for Immigration

[2003] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADJ v MINISTER FOR IMMIGRATION [2003] FMCA 328

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant has two separate fears – whether the applicant has a well-founded fear of persecution – whether the applicant can relocate – whether the Tribunal has made a jurisdictional error.

Judiciary Act 1903 (Cth), s.39B

Randhawa v Minister for Immigration (1994) 52 FCR 437
Dranichnikov v Minister for Immigration [2003] HCA 26
SCAL v Minister for Immigration [2003] FCA 548

Applicant: SZADJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 29 of 2003

Delivered on: 8 August 2003

Delivered at: Sydney

Hearing date: 28 July 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 29 of 2003

SZADJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is an Indian citizen who arrived in Australia on 31 December 2001.  On 15 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs.  On 26 March 2002 a delegate of the Minister declined to grant him a protection visa and on 26 April 2002 he applied for review of that decision by the Refugee Review Tribunal.  The Tribunal considered the papers and requested the applicant to attend before it to give evidence.  It made its decision on 19 November 2002 and handed it down on 17 December 2002.  The Tribunal affirmed the original decision of the delegate.

2. The applicant now seeks review of the decision of the Tribunal although neither his application nor his affidavit  in support offer much help in ascertaining the grounds under which he moves.  The application is in the following form:

   “1.The Refugee Review Tribunal’s member accepting that I have been assaulted but the member is advising to relocation in India.

   3.Relocation is not possible and I will submit the relocation problems in India to the court within four weeks. 

   4.On page 14 paragraph 1 the member wrote that she satisfied that I was the witness of a murder but not for a convention related reason.  Whereas it’s a religious and political problem.”

   The affidavit is shorter but in similar terms.

3. The applicant stated in his application that he was born on 15 January 1977.  He is a Muslim by birth.  He obtained a Bachelor of Business Management in 1999 and immediately obtained employment as an area supervisor in the India Tobacco Company in his home state of Karnataka.  He lived in the town of Shimoga until certain events caused him to flee into Hyderabad from whence he left for Australia.  The applicant was a member of the Student Islamic Movement of India (“SIMI”) and became joint secretary of that organisation for his location. 

4. In 1992 the applicant was involved in an incident in Chitragura following riots between Hindu and Muslim communities.  He complained to police about the treatment of Muslims during the riots and two days later thugs broke into the family home and the applicant and his parents were assaulted.  In regard to this incident the Tribunal made the following finding:

   “From the applicant’s claims and evidence, it appears that the applicant was the target of adverse interest not because of his activities in assisting Muslims through SIMI but rather because he reported the activities of thugs to the police.  From the applicant’s claims and evidence, the Tribunal is [not] satisfied that the thugs who assaulted the applicant were doing so for a convention related reason (because of his activities with SIMI), but rather because he made a report to the police.  They were angry with the applicant for “blowing the whistle” on their illegal actions.  In any case, for whatever reason the applicant was attacked in 1992, the Tribunal notes that the applicant then relocated to another part of India.”

5. In fact the applicant relocated to another part of the Karnatake state, Shimoga.  In August 2001 the applicant and his cousin were assisting Muslims who were having problems with members of a procession, (the procession of Lord Ganesh – a Hindu celebration).  He and his cousin were attacked.  The applicant was stabbed and his cousin was killed.  The Tribunal accepted that the applicant was assaulted and that this assault arose in the course of his activities with SIMI.

6. This is the only other incident which took place.  It had a number of sequelae.  The applicant reported his assailants, who had also killed his cousin to the police.  The applicant, fearing for his life, departed Shimoga and went into Hyderabad.  He stayed there no more than three months before he left for Australia. 

7. The Tribunal dealt with his incident under two separate sub headings.  The first was entitled:

   “Relocation (from Shimoga to Hyderabad [2001])”

   Its conclusion in relation to this aspect of the matter is in the following form:

   “Following this assault, the applicant relocated from Shimoga to Hyderabad in October 2001.  The applicant’s claims and evidence suggest that while the applicant was a member of SIMI, his activities were of a very local and low-level nature first in Chitagura and then in Shimoga.  The applicant has not claimed and there is no evidence to suggest he has been involved in any activities outside his own state.  The applicant has not claimed and there is no evidence to suggest that he resumed his SIMI activities in Hyderabad.  The Tribunal is satisfied on the evidence before it, that the applicant does not have any profile that would place him at risk outside Karnatake.  The Tribunal is satisfied on the applicant’s claims and evidence, and the independent evidence, that the applicant can live in other parts of India other than Karnatake where he claims to fear harm, and that he will obtain a meaningful remedy against risk of any persecution he may face in Karnatake.  The Tribunal is satisfied that the applicant would be out of the reach of his problems in other parts of India outside Karnatake, and is supported in this finding by the fact that the applicant resided in Hyderabad until his departure from India in December 2001 [for about three months].  The applicant gave evidence that although he was fearful, nothing actually ever happened to him in Hyderabad.  Bearing in mind the information on relocation discussed above, the Tribunal is satisfied that the applicant was able to successfully relocate to Hyderabad.

   In light of the applicant’s age [he is 25 years old], his qualifications [he has tertiary qualifications] and his work experience [in past has had no difficulty securing employment], the applicant’s employment prospects upon return to India appear to be positive.  It is open to the applicant to return to Hyderabad or in fact anywhere in India away from the problems he faced in Karnatake.  The Tribunal is satisfied the chances of his being harmed in parts of India other than Karnatake are remote and insubstantial.  Under these circumstances, the Tribunal is satisfied that relocation is a reasonable and feasible option for the applicant.

8. The next sub heading under which the Tribunal dealt with the Shimoga incident of August 2001 was under the sub heading “Witnessing a murder”.  In that regard the Tribunal came to the following conclusion.

   “The applicant gave evidence that in August 2001, he was assaulted and his cousin was killed.  The applicant’s claims and evidence are to the effect that he knew the assailants [who were members of the BJP], and he is the only witness to this murder.  The applicant gave evidence at his hearing that he fears harm because as the only witness to the killing, he would be required to give evidence against the assailants.  He gave evidence that these people want to “shut him up” and stop him from giving evidence against them.  The Tribunal is satisfied that the motivation of those persons seeking to harm the applicant are not for a Convention related reason, but rather because he has witnessed a murder…

   The Tribunal is satisfied that in this particular case, the applicant would be targeted upon return to India not for one of the five Convention reasons, but because he was witness to a criminal action, and that his evidence could place the perpetrators of this crime in prison.  The Tribunal is satisfied on the evidence before it, that the essential and significant reason for the harm feared is not Convention related but rather because the applicant’s persecutors seek to silence the applicant from giving evidence against them.  The Tribunal is therefore not satisfied that the applicant’s fear of harm is Convention related.”

9. These findings gave me cause for concern that they may be responsive to the wrong question.  The Tribunal has sought to separate the integers of one situation.  Remembering that the assault on the applicant (and therefore presumably the murder of his cousin) arose in the course of the applicant’s activities with SIMI it looks to see whether he can relocate.  It seems implicit in the assumption that he can relocate away from his problems that he would have problems that are convention related if he remained in the state.  What are those problems?  They could only be the fear he feels from those involved in the killing of his cousin and the assault upon himself which the Tribunal accepted arose in the course of his activities with SIMI.  I cannot find any evidence that any other fear was expressed.  In the applicant’s statement to the Tribunal [CB 76-78] this is the only relevant incident mentioned.  The applicant there deals with why he has a fear that he will not receive effective protection, and that does not appear to have been dealt with by the Tribunal in its reasons.

10. I am of the view that the Tribunal responded to these claims by the applicant appropriately. It decided he had a subjective fear of persecution for a convention reason and that he had that objective fear within his own state. It came to the view that he could relocate elsewhere in India based upon the short relocation that had occurred when the applicant went into Hyderabad. The Tribunal, by inference, asked itself the question whether or not the applicant would be likely to continue with his SIMI activities because it came to the conclusion that he would not, as he did not do that in Hyderabad.

11. The Tribunal accepted that the applicant had a well-founded fear of persecution for reasons of his political activities, arising out of the August 2001 assault, but concluded that he did not have an objective fear of persecution because “as a matter of practicality” he was able to relocate to another state within India: Randhawa v Minister for Immigration (1994) 52 FCR 437. At [CB 117] the Tribunal states:

    “The applicant has not claimed and there was no evidence to suggest he has been involved in any activities outside his own state. The applicant has not claimed and there is no evidence to suggest that he resumed his SIMI activities in Hyderabad. The Tribunal is satisfied on the evidence before it, that the applicant does not have any profile that would place him at risk outside Karnatake.”

    The function of the Tribunal is to respond to the case that the applicant advances: Dranichnikov v Minister for Immigration [2003] HCA 26 at [78] and the Tribunal is not required to consider claims that have not been made: SCAL v Minister for Immigration [2003] FCA 548 at [16]. It was open to the Tribunal on the evidence before it to conclude that the applicant could relocate.

12. The second issue relates to the Tribunal’s findings on the applicant witnessing of the murder of his cousin. The Tribunal held that the applicant did have a fear of persecution but it was not well-founded because the fear did not come within the confines of the five categories of Art 1A(2) of the Convention. The applicant’s fear in this instance is different from the fear discussed above. The first fear which the Tribunal found to exist was presumably one of general persecution of the applicant by people opposed to his SIMI activities. This second fear would appear to relate to particular persons namely, the murderers of his cousin. Whilst it is possible that these people might constitute a part of the group who the applicant had a fear of within the Convention, the Tribunal found that the particular fear he felt from these particular persons was not Convention related. That would seem to me to be correct. It is a fear of injury from these persons not qua political opponents but qua persons wishing to avoid prosecution for serious criminal offences albeit ones containing a political element.

13. The Tribunal was therefore right to divide the effects of this one incident into its two constituent parts and consider the applicant’s claims against both of them. I am of the view that the Tribunal asked itself the right question and was consequently not in error in a manner that could be reviewed pursuant to s.39B of the Judiciary Act 1903 (Cth).

14. I must dismiss this application, which I do. I order that the applicant pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: