SZCJN v Minister for Immigration

[2006] FMCA 56

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJN v MINISTER FOR IMMIGRATION [2006] FMCA 56

MIGRATION – Application for review of decision of RRT – where no jurisdictional error on the face of the decision.

Federal Magistrates Court Rules 2001

Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17

Applicant: SZCJN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG7 of 2004

Judgment of: Raphael FM

Hearing date: 16 January 2006

Date of Last Submission: 16 January 2006

Delivered at: Sydney

Delivered on: 16 January 2006

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG7 of 2004

SZCJN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian citizen.  He arrived in Australia on 23 March 2003.  On 17 April 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 2 May 2003 a delegate of the Minister refused to grant a protection visa and on 2 June 2003 the applicant applied for a review of that decision.  The Tribunal provided the applicant with an opportunity to attend before it, which he took. 

   
   

   It obtained evidence from him. 

2. On 12 November 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 9 December 2003.  The applicant now seeks judicial review of the decision on a number of bases with which I will deal, but which are in a formula that would be familiar to any person frequently dealing with matters of this nature.

3. The applicant's claim to have a well-founded fear of persecution for the Convention reasons of membership of a particular social group and/or political opinion arise out of the fact that the Tribunal has accepted that he was a community leader aligned to the BJP and RSS in his local village in the State of Gujarat.  He is a low caste Hindu, although he is not an Untouchable.  He is a member of the "Suther" community. 

   
   

   The applicant states that there is a strong attachment to caste differences in his state and that upper caste Hindus and fanatical Hindu fundamentalists engage in anti-low caste Hindu ideology.

4. The applicant told the Tribunal that he was a carpenter in his village and had a small business making tools and furniture.  Although, as leader of his village, he was associated with the BJP and the RSS, he came into conflict with other members of that organisation who were of a higher caste than himself.  They requested him to provide services to them for no charge, he refused to do this.  There was also a dispute, not entirely clearly described, about certain land which he owned. 

   
   

   He told the Tribunal that he was in particular fear of two persons of the high warrior caste and that he had had to leave his village because the other villagers supported the request by these persons that he should do work for the BJP without payment.

   At [CB 71] the Tribunal says:

   “He claimed that he did not have enough money to work for the party for no payment.  I asked him how he had paid for his airline ticket to Australia.  He said that he had sold his hardware business.  I put it to him that he could have used that money to relocate himself and his family away from the village.  He told me that if he moved he and his family would have language problems.  I put it to him that he had come to Australia and dealt resourcefully with his language problems.  He told me that he had many problems. 

   When asked to clarify the nature of his fears he stated that there was a lot of tension in his village and he feared that his family could be harassed.  I put it to him that he could move to another location in Gujarat and move away from the tensions in the village.  He said that the people who lived in the surrounding villages were influenced by people who had caused him problems.  ... I asked him why he could not move elsewhere in India.  He said he would have to find a job and rent a place for a while.  I put it to him that he had earned his livelihood as a carpenter and that he had the capacity to do that in another large town or city in India.  He claimed that he would not have the financial means to live.  I put it to him that he had come to Australia and so far managed to live here successfully.  He said he would have tension in India.  I pointed out that tension did not equate to persecution.  He said he feared that artful people would kill him or his family or would harass and torture them.”

5. Before considering in its findings and reasons the independent country information concerning the situation in India, the Tribunal noted that it was concerned that the claims which the applicant had made did not amount to persecution.  The Tribunal also noted that the applicant had not established that the harm feared was for one of the reasons set out in the Convention.  After considering the independent country information and, in particular, information concerning caste tensions, state protection, freedom of movement and the independence of the judiciary, the Tribunal came to the conclusion that the applicant had not satisfied it that he was a person to whom Australia owed protection obligations for three reasons.  

6. The first reason was that it did not accept that the targeting of the applicant was for a Convention reason arising out of his caste or political opinion.  The persons who had allegedly "persecuted" the applicant came from the same political party as himself.  They did not come from the same caste, but the Tribunal thought that the evidence that the applicant had given it indicated that the attacks made upon him (using the word in its broadest possible sense) arose out of his refusal to provide services for free, rather than because of his membership of a lower caste.  The Tribunal also determined that the Republic of India would provide effective protection through its police force and through its independent judiciary for the applicant against any possible persecution by these recalcitrants. 

7. Finally, the Tribunal took the view that the applicant had shown that he was a person who could relocate within India and who could live in safety in another part of that country without any loss of livelihood.  The Tribunal noted the applicant's craftsmanship abilities and his resilience in finding himself in a new situation in Australia and used that as evidence that he would be able to do the same in another state or another part of his own state.  The Tribunal did not accept the applicant's suggestions that he could be found anywhere by these particular people who he said were persecuting him. 

8. The reasons which I have adumbrated above can be easily drawn from the evidence that was before the Tribunal.  There is nothing on the face of the Tribunal's decision which would indicate that it was made as a result of the Tribunal falling into some form of jurisdictional error.  One is therefore obliged to look to the applicant's application and what he said to me today to decide whether or not such a ground is made out.

9. The first ground contained in the application is that:

   “The Tribunal made his (sic) decision in bad faith.” 

   An allegation of bad faith was said by Gleeson CJ and Gummow J at [69] and Kirby J at [27] in Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 as to involve:

   “A party asserting actual bias on the part of a decision maker carries a heavy onus.  The allegation must be distinctly made and clearly proved.”

   A mere assertion is not making an allegation distinctively and certainly goes nowhere towards proving the same.  This ground cannot possibly be made out.

10. The second ground was that:

    “The Tribunal denied the evidentiary proof of my claim.”

    I have never really understood these words, which appear quite frequently, but I imagine that what they are intended to mean is that the Tribunal did not accept the evidence of the applicant.  It is the Tribunal's task to decide whether or not it accepts the evidence of an applicant and it is not for this Court to interfere in that factual assessment.  That ground is also untenable.

11. The third ground is that:

    The Tribunal deprived me of natural justice.

    This is another serious allegation.  At the very least some attempt should be made to particularise it.  None has.  I do not accept it.

    
    
    

12. The fourth ground is that:

    The Tribunal has given a decision which was pre-set in the back of its mind.

    This is another way of saying that the Tribunal acted in bad faith and the remarks which I have made previously apply equally to it. 

13. The fifth ground is that the Tribunal:

    “Mixed up many facts with this decision which affected the decision.”

    It would be interesting to know what facts were allegedly mixed up and how they affected the decision.  In the absence of any such knowledge I cannot really comment upon this ground, save to say that it is not made out.

14. Finally, the allegation is that:

    “The Tribunal's decision did not subject the material facts of my claim.”

15. I assume this means that the Tribunal did not take into account the evidence given by the applicant.  There can be no doubt that the Tribunal did this from a cursory reading of the reasons for decision. 

    
    

    I am not satisfied that this claim is made out or that it constitutes jurisdictional error. 

16. When the applicant appeared before me I asked him what he had to say to establish that the Tribunal made an error of law in the manner in which it came to its decision.  The applicant responded that he "did not know much".  I asked him whether he had written the grounds.  He told me that a friend had.  It is quite clear that this applicant has no idea as to why the Tribunal may have made an error in his case. 

17. In all the circumstances, having considered the decision for myself, having heard the helpful submissions made by Mr Johnson on behalf of the respondent, and taken into account the grounds of the application I am satisfied in my own mind that the Tribunal did not make a jurisdictional error when it came to its decision and therefore this application is incapable of being reviewed. 

18. I dismiss the application for review. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: