SZBSM v Minister for Immigration

[2005] FMCA 1490

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSM v MINISTER FOR IMMIGRATION [2005] FMCA 1490

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958, s.474

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SGLV v Minister for Immigration & Multicultural & IndigenousAffairs (2004) 78 ALJR 992
Minister for Immigration & Multicultural & IndigenousAffairsvNAMW (2004) 140 FCR 572
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27

Applicant: SZBSM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2245 of 2003

Judgment of: Barnes FM

Hearing date: 5 October 2005

Delivered at: Sydney

Delivered on: 5 October 2005

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Refugee Review Tribunal be joined as a second respondent to the proceedings.

2. That the application is dismissed. 

3. That the applicant pay the costs of the first respondent fixed in the amount of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2245 of 2003

SZBSM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 October 2003 affirming a decision of the delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of India, arrived in Australia in August 2002.  He applied for a protection visa.  The application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing.  As indicated the Tribunal affirmed the decision not to grant the applicant a protection visa. 

3. The applicant provided details of his claim in a statement attached to his original protection visa application, in his application for review and in oral evidence at the Tribunal hearing.  The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal reasons for decision. 

4. As the Tribunal sets out in its reasons for decision, the applicant's case as put at the hearing had a different emphasis to his claims in his primary application (which I note were repeated in summary form in his written application for review by the Refugee Review Tribunal).  In essence, he claimed that he had been in a business partnership with a man of the Muslim faith which employed both Muslim and Hindu employees and that following the demolition of the Babri Mosque in 1991 he attempted to dismiss the Muslim employees but that this was opposed by his partner.  A compromise was reached but the relationship deteriorated.  The applicant claimed that that from that time onward his partner sought to undermine his authority and to take over the business with the support of the remaining Muslim employees and that with the help of Muslim terrorist groups the Muslim employees began threatening him. 

5. The applicant claimed that he became aware that his partner wanted the whole of the business but did not agree.  There was a flare up in tension following a January 2000 incident when Hindu fundamentalists declared they would build a temple on the site of the demolished mosque and after an attack by Muslim fundamentalists on a train in Gujarat in February 2002.  He claimed that in March 2002 at the height of the rioting in Gujarat some men came to his home and threatened to kill him because he had tried to dismiss his Muslim employees and warned him not to take action against the remaining Muslim employees.  He claimed that he was injured in the course of this confrontation, that his brother was slashed with a knife and that he and his brother were admitted to hospital after the screams of his wife brought the attention of the military.  The applicant also claimed that while he was in hospital an unknown man threatened him that ‘his group’ would kill him.  He believed this man was from the Al Umma group.  He claimed that on release from hospital he abandoned his business, went into hiding and then came to Australia.  His brother died of a pre-existing heart condition.  He did not lodge a complaint with the police in Gujarat about the terrorists because he claimed that this was a Muslim area and he feared his complaints would fall on deaf ears. 

6. In its reasons for decision the Tribunal noted that the applicant's claims at the hearing were significantly different to those in his primary application and that his case had become that he feared he would be attacked and killed by ‘terrorists’ employed by his former business partner whereas initially his case had been that he would be arrested to answer false charges laid against him under instructions from a Muslim political party.  In the course of the hearing the applicant made a number of concessions, including that he had never taken proceedings against former employees as initially claimed, that his brother had not died of injuries from the attack but from a pre-existing condition and that (contrary to his initial claim and his claim in his review application) no false charges or proceedings of any kind had been commenced against him. 

7. The Tribunal found on the basis of the claims as put at the hearing that there was no truth in the applicant’s initial claim that he would be arrested if he returned to India because of false cases brought by the police at the request of a Muslim party. 

8. The Tribunal found that why it may be that the initial dispute which arose between the applicant and his Muslim employees may have had some inter religious connection to the destruction of the Babri Mosque, the essential and significant reason for the situation (which evolved over a number of years into the destruction of the partnership) was the applicant's initiative to dismiss the Muslim employees and that, although a compromise was initially reached between the partners, the relationship was damaged irreparably and exacerbated by the applicant later making threats against the remaining Muslim employees.  It accepted as plausible that the applicant's partner used the explosive situation in Gujarat to try to frighten the applicant into relinquishing his involvement in the business, but was of the view that the troubles in the business and the machinations of the applicant's Muslim partner were ‘private matters with no mistreatment that the applicant may have suffered because of the actions of his partner having any Convention nexus’.  The Tribunal found that none of the Convention grounds was the reason for the difficulties experienced by the applicant.  Rather, the applicant was the victim of the machinations of the business partner (motivated by greed) seeking to take over the entire business for himself.  This was found to be outside the scope of the Refugees Convention. 

9. The Tribunal found, on the basis of country information about the situation in India (and Gujarat in particular), that the applicant's claims that the police would not assist a Hindu being pressured by a Muslim gang, that any complaint to the police in the Hindu-dominated State would fall on deaf ears, that the police would not be able to catch the intruders because they had political connections with Muslims that in the political environment the police would be allied to minor Muslim parties, to be implausible.  On the basis of these findings and noting that the attack complained of by the applicant was ended by the intervention of the Indian Army Military Police, the Tribunal found that effective protection would have been provided by the authorities had it been sought by the applicant. 

10. The Tribunal did not accept that the applicant had been threatened in hospital as claimed.  It went on to find that even if such an incident did occur the claim that the man was from Al Umma (a small extremist Muslim Party operating in Tamil Nadu) was entirely speculative and highly improbable.  The Tribunal found it more likely that, if such a threat occurred, the man was from a local criminal gang with no particular religious or political affiliations. 

11. Hence the Tribunal was not satisfied that the applicant had suffered persecution for any Convention reason in the past or that there was a real chance that serious harm for any Convention reason would befall the applicant in the reasonably foreseeable future upon his return to India.  It was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

12. The applicant sought review by application filed in this court on 22 October 2003.  That application contains no grounds for review.  No amended application was filed by the applicant.  However written argument filed on 28 September 2005 commences by repeating the applicant's claims, contends generally that the Tribunal made an error of law and denied him procedural fairness and lists five grounds sought to be relied upon.  The solicitor for the respondent addressed each of those grounds in oral submissions today. 

13. In oral submissions today when given an opportunity to expand upon these grounds, the applicant took issue with the merits of the Tribunal decision (in particular its conclusion that his concerns related to a personal matter and lacked the necessary Convention nexus).  Insofar as the applicant takes issue with the merits of the Tribunal decision this is not a re-hearing and merits review is not available in this Court. 

14. The applicant also took issue with the Tribunal's reliance on country information in relation to the percentages of Hindus and Muslims in Gujarat.  His complaint, however, was not with the accuracy of such information, but rather with the Tribunal's reliance upon such information in the course of making its determination about the availability of effective protection.  Such complaint does not establish jurisdictional error on the part of the Tribunal.  The Tribunal's findings in that respect were open to it on the material before it for the reasons that it gave.  These submissions also, in essence, take issue with the merits of the Tribunal decision and do not establish jurisdictional error. 

15. The first ground raised in the written argument of the applicant is that the Tribunal fell into jurisdictional error in as much as it focused its attention on the issue of credibility and that it failed to take properly into account ‘other evidences and materials’ in relation to the claim by a Hindu from India.  First, insofar as credibility was relevant, it is a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). However in fact the Tribunal accepted the essential claims about past events made by the applicant at the hearing. It did not rely on inconsistencies between the applicant's claims as presented at the hearing and these in the protection visa application or the written review application. Further, although it did find aspects of the applicant's claims in relation to its determination of the availability of effective protection (had the applicant complained to the police) to be implausible, as indicated above such findings were open to it. While the Tribunal did not accept the applicant's claim that he was threatened by a man from Al Umma while in hospital, it also considered the possibility that it did occur. The finding that the claim that the man was from Al Umma was entirely speculative was consistent with the applicant’s evidence and does not reveal jurisdictional error.

16. Insofar as the applicant contends that the Tribunal was under an obligation to take into account some other evidence and material, there is no general duty on the Tribunal to inquire as appears to be contended (see SGLV v Minister for Immigration & Multicultural & IndigenousAffairs (2004) 78 ALJR 992). It is apparent from the Tribunal reasons for decision that it considered the applicant's claims as put to it at the hearing and the material before it. No error is established in the manner contended by ground (i).

17. The second ground (numbered (iii)) is that the Tribunal fell into jurisdictional error in not considering the claims raised by the applicant in the hearing: “the fear of persecution by the reason this racial clash issue” (sic).  The only evidence before the court of what occurred in the hearing is the Tribunal reasons for decision.  The applicant had the opportunity to file further material in these proceedings but has not filed a transcript of the Tribunal hearing.  On the material before the Court it is apparent that, contrary to the applicant's contention, the Tribunal did consider the claims raised by him in the hearing and did consider his claim that he feared of persecution because of the racial clashes occurring in India at the time.  As indicated, it accepted that it may be that the initial dispute between the applicant and his employees may have had some inter religious connection to the destruction of the Babri Mosque but found that the essential and significant reason for the situation leading to the destruction of the partnership was the initiative of the applicant to dismiss the Muslim employees and that the troubles in the business and the machinations of the applicant's partner were private matters with no mistreatment that the applicant had suffered because of the actions of his partner having any Convention nexus.  It found that there was nothing to suggest that there was a real chance that serious harm for a Convention reason would befall the applicant in the reasonably foreseeable future.  On the material before the Court it has not been established that the Tribunal failed to consider the applicant’s claims.  The applicant's disagreement with the Tribunal's categorisation of these claims as not Convention based does not establish jurisdictional error. 

18. The next ground relied on is that the Tribunal made a jurisdictional error to find whether or not the applicant had had a well-founded fear of persecution “notwithstanding the knowledge that I may not have suffered any actual harm”.  This ground is not expressed clearly.  Insofar as it asserts that the Tribunal failed to consider any act or harm suffered by the applicant in the past, that is not established.  It is clear that the Tribunal did consider the applicant's claims of past harm.  Nor did the Tribunal proceed on the basis that actual harm is an essential prerequisite to the establishment of a well-founded fear of persecution.  The applicant failed because of the absence of any Convention nexus for his claims and also because of the Tribunal finding in relation to the availability of State protection.  No error is established by this ground. 

19. The next ground is that the Tribunal made a jurisdictional error in failing to correctly consider to apply the test of well-founded fear of persecution for the purpose of the Convention.  However the Tribunal set out the correct test at the commencement of its reasons for decision and it has not been established that the Tribunal failed to apply the test correctly. 

20. The final ground relied upon is that the Tribunal made a jurisdictional error in relying on other sources of available country information in breach of a fundamental requirement of the Migration Act 1958 (C’th).  The applicant's contention is that such information was information subject to section 424A(1) of the Act and outside the exception in section 424A(3)(a).  However, it is clear that the country information relied upon by the Tribunal (information in relation to the situation of Hindus and Muslims in the State of Gujarat) is in fact information within the exception to the section 424A(1) obligation in section 424A(3)(a) (see Minister for Immigration & Multicultural & IndigenousAffairsvNAMW (2004) 140 FCR 572). The Tribunal placed no reliance on any discrepancy in the claims made by the applicant in his initial protection visa application and at the Tribunal hearing. The Tribunal proceeded on the basis of the applicant's claim as put at the hearing. Hence, this is not a case in which any issue arises following the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 as to the extent of the Tribunal's obligations under section 424A(1) in relation to prior inconsistent claims. In any event the claims made in the protection visa application were summarised in the written review application to the Tribunal and, in that sense, the claims were made by the applicant to the Tribunal for the purposes of the application, see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.

21. No jurisdictional error has been established in the Tribunal reasons or procedures. Accordingly the Tribunal decision is a privative clause decision under section 474 of the Migration Act 1958 (C’th) and the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. It is appropriate that the Refugee Review Tribunal be joined as a party to the proceedings in light of the decision of the High Court in SAAP. 

2. The applicant has been unsuccessful.  The first respondent seeks costs in the sum of $3,300.  The applicant told the court that he has no job and he seeks that the costs be reduced on that basis.  However the applicant's lack of funds is not a reason for not awarding costs of an appropriate amount, although it may be a matter taken into account by the respondent in determining how and when to seek to recover any costs.  I consider that the amount of $3,300 is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  26 October 2005.