SZBWH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1216

FEDERAL COURT OF AUSTRALIA

SZBWH v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1216

SZBWH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 953 OF 2005

STONE J
31 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 953 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBWH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	31 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed;

2.The appellant pay the first respondent’s costs in the amount of $2,100.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 953 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBWH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	31 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of a Federal Magistrate made on 24 May 2005 in which his Honour dismissed an application to review a decision of the Refugee Review Tribunal (“Tribunal”).  In a decision made on 30 September 2003 and handed down on 23 October 2003, the Tribunal affirmed the decision of a delegate of the first respondent, made on 9 May 2003, refusing to grant the appellant a Protection (Class XA) visa.

   Background

2. The appellant, a citizen of India, arrived in Australia on 10 April 2003.  On 8 May 2003, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.

3. In his application for a protection visa the appellant, a Muslim, states that he was born in Thennur, Thiruchirampailli in Tamilnadu State, an area comprising a mixed Hindu and Muslim population.  After completing his secondary education, the appellant commenced work in his father’s jewellery store.  The appellant stated that his family were ‘fairly wealthy’.  In 1992, because of perceived business opportunities the appellant’s family relocated to Ahmedabad in Gujerat State where the appellant continued to help his father in his store.

4. However, the appellant claimed that the situation in Gujerat was ‘not very good’ for Muslims as Muslims were viewed with ‘suspicion and hostility’.  At this time, the appellant, his younger brother and his father had begun to be involved in the Tamilnadu Muslim Social Welfare Association of Ahmedabad, which was concerned with religious and social work among local Muslims and, as part of this involvement, collected funds for the building of a mosque.

5. The appellant claimed that following the Gujerat train tragedy in February 2002, on 5 March 2002 a ‘gang of armed Hindu Muslim-haters’ entered his father’s shop and destroyed showcases, took money and attacked the appellant, his father, his younger brother and ten of his father’s employees.  The appellant claimed that the attackers asked them whether they were collecting money to build a mosque.  He further claimed that his younger brother was stabbed to death during this attack.  The appellant stated that he and his father managed to escape, after which the attackers set fire to the shop.

6. The appellant claimed that he and his father went to the police to report his brother’s murder and the burning of the shop, however, the police, ‘in a frenzy of anti-Muslim hate’ because of the train tragedy, refused to entertain the complaint and chased them out of the police station warning them that all Muslims should leave Gujerat.  The appellant claimed that after the murder of his brother the family decided to move back to Thennur, a journey that incurred significant cost and resulted in the family losing their life savings.

7. The appellant further claimed that on 15 May 2002, a group of armed men broke into their house in Thennur, identifying themselves as members of the RSS, a Hindu extremist group, and ransacked the house.  According to the appellant, they accused the family of being Pakistani spies and told them they should leave the country.  In particular, the appellant claimed that when beating him they were ‘saying that I had been trying to build a mosque in Ahmedabad’.

8. The appellant claimed that at this point he decided to leave India and seek asylum.  He further stated that re-location within India was not possible as ‘Hindu extremists are far flung in all states and have my personal details’.  Consequently, he paid an ‘agent’ who organised a visa to Australia. 

   The Tribunal’s decision

9. At the hearing on his review, the appellant was questioned by the Tribunal about the two alleged incidents that formed the basis for his claim to refugee status.  In relation to the first incident of 5 March 2002 the Tribunal stated:

   ‘The Tribunal asked the applicant about the alleged incident on 5 March 2002. The applicant stated that his father had a prospering jewellery business in Gujerat. Following the Godhra train incident on 27 February 2002, there was substantial violence against Muslims. The applicant stated that at about 11.00am on 5 March 2002 “RSS extremists attacked the shop...they began to attack the showcases. They stole the jewellery”. The applicant’s father asked the offenders “what did we do?” to which they allegedly replied “you’re spying for Pakistan, you’re collecting funds to build a mosque...you want to alienate Hindus”.  The applicant’s younger brother asked them “why are you doing such things?”. The applicant said that he personally ran away but they stopped him and beat him up to the point of unconsciousness. They stabbed his borther to death.

   The applicant provided the Tribunal with a photograph of a deceased male who appeared to have had a number of wounds and cuts. The applicant said that this was his brother and that the photograph had been taken by the police at the scene of the crime. When the applicant and his father went to the police station, they were told by a senior police officer that “nothing could be done....the whole village is burning”. The applicant said that the police are scared to take action.

   The applicant said that there was “some business competition” between his family and a person connected with the RSS. The applicant suspects that this person is behind this incident.’

10. In respect of the alleged incident of 15 May 2002, the Tribunal stated that:

    ‘The Tribunal asked about the alleged incident on 15 May 2002. The applicant said that it was not the 15^th May 2002 as he had previously claimed but the 15^th April 2002.  Subsequently, the applicant changed his mind and said he was uncertain about the specific day but he was certain that it was in April 2002 and not May 2002. The applicant said that he was shopping at the “bazaar” at about 11.30pm when he found out that their house had been set on fire which caused damage to the rear part. The applicant stated that about fifteen persons were involved in this incident but he suspects that the person who is connected to the RSS was mainly responsible. The applicant claimed that they told his father that they are going to kill the applicant and that he must leave to Bangladesh. The family subsequently moved to Poiyatha, Nallur, Tamilanadu but the applicant went into hiding in Madras.

    The applicant said that the person connected to the RSS whom he suspects to have been responsible for the incidents, had a younger brother who was killed by a van whilst travelling on a bike. The applicant said that this person blames him for the accident and somehow believes that the applicant was behind this person’s brother’s death.  According to the applicant, this person is after him for two reasons, namely, business competition and the brother’s death.

    In support of the claim relating to the April 2002, the applicant provided the Tribunal with two photographs of a house that appears to have had fire damage. The applicant stated that the photographs were of their house and that they were taken by a neighbour “three to four minutes” after the fire. The Tribunal pointed out to the applicant that at the back of the photographs, there appears to be some numbers. The Tribunal asked if the numbers were dates, the applicant said that the numbers were not dates and that the two photographs had been taken by a friend early 2003, some months after the fire.  He said that the photographs had been sent to him in Australia by his father who had asked a friend to take them.

    The Tribunal pointed out to the applicant that about ten minutes earlier, he had given evidence that the photographs had been taken by a neighbour “three to four minutes” after the fire and not months later by a friend. The applicant did not accept from the Tribunal that he had said “three to four minutes”.  The Tribunal played the tape back to the applicant and he listened to that response, confirming that he had said so. The Tribunal noted that the photographs had clearly been taken during day light and could not have been taken three to four minutes after the fire as he has asserted that the fire had occurred at night. The Tribunal asked the applicant to comment on the inconsistency in his responses. The applicant said that the photographs had been taken months later by a friend.’

11. The Tribunal found that the appellant’s claims were inconsistent and contradictory.  It stated:

    ‘In particular, I note the following inconsistencies:

    1.The applicant originally claimed that he can only speak Tamil. At the hearing, the applicant stated that he is able to speak Tamil, Hindi and English. Although, he did say that he did not speak the latter two languages fluently.

    2.The applicant originally claimed that the second incident occurred on 15 May 2002 but subsequently stated that the incident occurred on 15 April 2002. This latter date was also changed by the applicant to a date in “April 2002”.

    3.The applicant originally said that “on 15/5/02, at about11.30pm, a group of armed men, who identified themselves members of the RSS, broke into our house and ransacked it. They said that we were Pakistani spies and should leave the country. All my father’s efforts to placate them failed. They left our house having ransacked and looted it with dire warnings. They especially beat me up saying that that I had been trying to build a mosque in Ahmedabad”. At the hearing, the applicant gave evidence that at the time of this incident, he was shopping at the “bazaar”, that is, nowhere near the house when it was allegedly set on fire. That is, he was not assaulted.

    4.At the hearing, the applicant initially gave evidence that the two photographs relating to the alleged incident in April 2002 were taken by a neighbour “three to four minutes” after the fire.  He subsequently said that they were taken early 2003 by a friend.’

12. As a result of these inconsistencies, the Tribunal was unable to decide whether the appellant was completely truthful.  It also noted that apart from the three photographs referred to above and three general articles on the situation in India, the appellant had not provided any specific supportive or corroborative material.  The Tribunal also had regard to independent country information that violent events have occurred in Ahmedabad, however, the Tribunal did not accept that this must unequivocally lead to a conclusion that the appellant’s claims were true.

13. Nevertheless, the Tribunal accepted that on 5 March 2002 the appellant’s father’s store was attacked, showcases were destroyed and money stolen.  The Tribunal further accepted that the appellant’s family home was broken into and ransacked in April 2002 and that the appellant’s business competitor was responsible for both incidents.  The Tribunal was satisfied that the reasons for the alleged two incidents were private, that is unrelated to any Convention reason.

14. The Tribunal also considered the appellant’s claim that because he is a Muslim the authorities, namely the police, have not intervened and would be unlikely to do so because the police are ‘scared’ of the RSS.  The Tribunal stated:

    ‘I have given regard to independent country information revealing that the police have directly been implicated in violence against Muslims in Gujarat and there have reports of their unwillingness to assist.  However, just because this has happened, it does not mean that in this case, the police have failed to assist. The Tribunal notes that in the protection visa application, the applicant stated that he would be providing a report concerning his brother’s death as well as a report concerning the “burning of our shop in Ahmedabad”, implying that such reports do indeed exist. The applicant did not do so. On the basis of the available [evidence], the Tribunal cannot be satisfied that the Indian police would not have investigated the murder of the applicant’s brother.’

15. The Tribunal concluded that it could not be satisfied that the appellant or his family had suffered harm that is essentially and significantly attributable to a Convention reason.  Further, it was not satisfied that there was a real chance of such treatment in the reasonably foreseeable future.  As a result of the appellant’s contradictory and inconsistent claims and the lack of verifiable material the Tribunal was not satisfied the appellant was telling the truth and therefore was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

16. Consequently, the Tribunal affirmed the delegate’s decision.

    Proceedings in the Federal Magistrates Court

17. On 11 November 2003, the appellant filed an application for review of the Tribunal ‘s decision in the Federal Magistrates Court.  At [10]-[13], his Honour described the application before him:

    ‘...The application does not disclose any valid ground of review nor set out what relief the applicant seeks. I asked the applicant about those things and not surprisingly he told the Court that he seeks an order quashing the decision of the Refugee Review Tribunal and referring the matter back to the Tribunal for reconsideration according to law.

    The applicant has not provided any grounds for the Court to make those orders. There is no claim for denial of natural justice or lack of procedural fairness. This is hardly surprising as it is accepted that the applicant attended at the hearing before the Tribunal and gave oral evidence. The Tribunal member asked him a number of questions about his case. The applicant seems to have been able to reply to all of those questions.

    The difficulty for the applicant is that the Tribunal was just not satisfied that he had made out his case. The Tribunal was not satisfied as to the credibility of his evidence. The Tribunal was satisfied that he is a Muslim and that he had suffered harm in two serious incidents. The Tribunal was not satisfied however that the harm that he had suffered was for a Convention reason.

    It is not enough to show that a person has suffered harm. Having been harmed or threatened does not of itself make one a refugee. The harm must be for a Convention reason.’

18. The Federal Magistrate held that the appellant merely sought to cavil with the merits of the Tribunal’s decision.  His Honour held that the Tribunal’s findings were reasonably open to it on the evidence and that there was no reviewable error shown in the decision.  As a result, the Federal Magistrate dismissed the application.

    This appeal

19. On 14 June 2005, the appellant filed a notice of appeal in this Court from his Honour’s judgment.  The grounds of appeal are that the Federal Magistrate erred in failing to find errors of law, jurisdictional error and that there was a denial of procedural fairness.  The notice of appeal also refers to a number of judgments of this Court and the High Court, however, the relevance, if any, of these judgments is not clear.

20. The appellant has also filed written submissions in support of his appeal.  In addition to the matters raised in the notice of appeal, the appellant claims that

    (a)the decision of the Tribunal was not a bona fide exercise of power;

    (b)the Tribunal did not follow the proper procedure as required by the Migration Act 1958 (Cth);

    (c)there was no evidence or related materials to justify the decision; and

    (d)the Tribunal did not properly consider the appellant’s claims.

21. I note that some of the material in the written submissions is of no relevance to this appeal and may have been prepared in respect of another, unrelated appeal to this Court.  I say this because the document refers to a Notice of Objection to Competency allegedly filed by the first respondent in the proceedings before the Federal Magistrate.  However, it would appear that no such document was filed in the proceedings before his Honour.

22. The appellant’s grounds of appeal, both in his notice of appeal and written submissions, are entirely unparticularised and are of limited assistance.  At the hearing of the appeal, the appellant was not able to add to his written submissions.

23. The Tribunal accepted that the two incidents recounted by the appellant had occurred, however, it found that the harm was not attributable to a Convention reason.  It is not the role of the Court to review the merits of the Tribunal’s decision.  As the Federal Magistrate noted, the Tribunal’s findings were open to it on the material available.  In my view, the matters raised in the appellant’s submissions in addition to those before his Honour are without merit and, leaving aside any issue of the limited role of an appellate court, must be rejected.

24. For these reasons the appeal must be dismissed with costs fixed in the amount of $2,100.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             6 September 2005

The Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 2005
Date of Judgment:	31 August 2005