SZAJF v Minister for Immigration - [2004] FMCA 66

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAJF v MINISTER FOR IMMIGRATION

[2004] FMCA 66

MIGRATION – Review of RRT decision – where applicant claimed he was forced to make donations to various political groups – where applicant had visited other countries numerous times but returned to country of nationality despite allegedly being subjected to persecution there – where applicant was not found to be a credible witness – where applicant essentially seeking merits review.

Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 77

Applicant:

SZAJF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 552 of 2003

Delivered on:

5 February 2004

Delivered at:

Sydney

Hearing date:

5 February 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 552 of 2003

SZAJF

Applicant

And

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on

24 December 2001. On 21 January 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 31 May 2002 a delegate of the Minister refused to grant a protection visa and on 26 June 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 26 February 2003 affirmed the decision of the delegate and handed down its decision on 18 March 2003.
The applicant claims to have a well-founded fear of persecution for the Convention reason of religion. He is a Muslim previously living in Chennai. His family own a jewellery store and he worked in it. He had received education up to a university level.
The applicant claimed that after he took over the responsibility for the family jewellery store he was required to pay donations to the Jihad committee in his locality. He made significant payments over a number of years. He claimed that the RSS found out about these donations and in June 2000 attacked his shop and did considerable damage. Thereafter the applicant and his family moved twice. Firstly, to Madurai, and then to Trichinopoly. The applicant claims that despite these moves he was pursued by the RSS who forced him to make a contribution to their coffers. But this was not sufficient and he was threatened and he could not live in India any longer. The applicant then decided that he must leave the country and he fled into Australia where he sought asylum.
Prior to the applicant coming to Australia he had travelled to both Japan and South Korea and had transited these countries through Malaysia.
At [CB107] the Tribunal:
“ Accepts the applicant's claims that he (presumably on behalf of the family business) made donations to the Jihad committee, the Al-Unna, and (as was claimed at the hearing) the RSS. The Tribunal also accepts that in June 2000 some four or five people broke into his family's shop and caused considerable damage. But also accepts that he does not claim in his protection visa application, application for review, or at the hearing that anyone was hurt or that threats were made.”
The Tribunal was, however, not satisfied from the claims and responses made by the applicant that the attack was undertaken by the RSS and that the essential and significant reason for the attack on the business was a Convention one. The Tribunal accepted that the applicant and his family had been abused but was not satisfied that the abuse was of a type to be regarded as serious harm amounting to persecution for a Convention reason consistent with section 91R Migration Act 1958.
The applicant also gave evidence about an attack on his home before the move to Madurai which he claimed was the responsibility of the RSS. The Tribunal came to the view that:
“ From the claims made by the applicant the Tribunal has not been able to satisfy itself that the attack on his family home was undertaken by RSS and that the essential and significant reason for the attack was for a Convention related reason.”
The Tribunal considered the fact of the applicant having visited countries which had signed the Refugee Convention and yet not having made an application for asylum to them. In this regard it said at CB109:
“ Further, the Tribunal finds that even if he did not for any reason wish to seek refugee status in Japan, then he could have taken the opportunity of being outside India to go to another country for this purpose but finds that he did not attempt to do so but rather chose to return to India where he claims his life was at risk. In view of all the above, the Tribunal is not satisfied that the applicant had a well founded fear of serious harm amounting to persecution for a Convention reason at the time of his visit to Japan in November 2000.”
Having made that finding, the Tribunal then turned to the situation between November 2000 and the time the applicant left for Australia. The Tribunal was sceptical of the applicant's claim that the RSS would seek out himself and his family after they had left Chennai and gone into Madurai and then later into Trichinopoly. It believed that the chance that the RSS was actively looking for the applicant throughout India was remote and it came to the view that the applicant had not been able to satisfy the Tribunal that there is a real chance that he would experience serious harm amounting to persecution for a Convention reason if he returned to India either now or in the foreseeable future.
The Tribunal also considered the applicant's claim that as a Muslim he would not be able to live peacefully in largely Hindu India. The Tribunal considered the country information and came to the view that India was committed to encouraging communal harmony and that the applicant could not establish why he feared he would be the victim of communal violence directed towards him as opposed to more generalised or random community violence. For all these reasons the Tribunal felt that the applicant was unable to establish that he had a well-founded fear of persecution for a Convention reason.
The applicant filed an amended application on 27 January 2004 which he said he had received help with from his friends. There are six grounds contained in that document. The first is that the Tribunal erroneously upheld the finding of the delegate that the grounds adduced by the applicant were not Convention related. This is an attack upon the basic finding of the Tribunal and does not indicate the existence of any jurisdictional error. The second ground is that the Tribunal came to the view that the applicant's reasons for fleeing India were economic and business related and not religio-political. The alleged failure to recognise is to my mind no more than a failure by the Tribunal to recognise or accept the applicant's contentions. The Tribunal has set out clearly its reasons for declining to do this and no legal error is indicated.
The third matter states that the Tribunal failed to take into account that the applicant and members of his family were repeatedly attacked by Hindu extremists and that they were subject to religious persecution. In fact, the Tribunal has analysed all the claims made by the applicant relating to attacks upon him and found that at least one of them took place. But the Tribunal also was unable to be satisfied that those attacks were motivated by a Convention reason. This finding of fact is one that the Tribunal relied on and there is no error in law in making a wrong finding of fact. Abebe v The Commonwealth (1999) 197 CLR 510; Waterford v The Commonwealth (1987) 163 CLR at 77.
The fourth ground relates to the applicant's visit to Japan and Korea and his failure to apply for asylum there. The ground as set out is argumentative but, in any event, the failure to seek asylum in those countries, whilst being commented on by the Tribunal, was not its reason for decision.
The fifth matter refers to certain doubts expressed by the Tribunal that the applicant was who he said he was. It is true that the Tribunal expressed these doubts but, in the end, it gave the applicant the benefit of them and proceeded on the basis that he was the man who appeared in the passport, photocopies of which were found in the court book.
Finally, the applicant states that he would face certain death if he were to return to India, and that this fact had been ignored by the Tribunal.

I am quite satisfied from my reading of the court book and, in particular, the Tribunal's decision that it was well aware of this claim by the applicant. It was its failure to be satisfied of it that founded its main reason for decision.
When the applicant appeared before me today he told me that he was frightened to return to India because he believed he would be killed. He told me that if he went there they would kill him, that he could not do any business, and that he would not be living in peace but would always be in trouble. He said that he had told the Tribunal about his situation and that he was telling me the same thing again. The applicant was unable to advise me of any area in which he believed the Tribunal had fallen into jurisdictional error. His concern with the Tribunal's decision was one on the merits. That is not a matter that this court can delve into.
In all the circumstances, I am unable to find any grounds upon which I can review this decision. I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: