SZCMH and SZCMI v Minister for Immigration and Multicultural Affairs

[2006] FCA 501

FEDERAL COURT OF AUSTRALIA

SZCMH & SZCMI v Minister for Immigration & Multicultural Affairs [2006] FCA 501

SZCMH AND SZCMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 221 OF 2006

EDMONDS J
12 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 221 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCMH AND SZCMI
APPELLANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 221 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCMH AND SZCMI
APPELLANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) not to grant a protection visa to the appellant husband (‘the appellant’) and his wife.  The wife has no independent claims.

   BACKGROUND

2. The appellant is a citizen of India, of Hindu religion.  He arrived in Australia, with his wife, on a temporary visitor visa on 22 March 2003 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) on 1 May 2003.

3. The appellant’s claims were set out in that document.  The appellant said that he had left his country of nationality, India, ‘due to the fear of getting persecuted for having different political opinion and personal problems developed in local mafia group and life threats on our lives’.   He claimed that he had been running a business for himself in Bombay.  In 1985 he had joined the Samajwadi Party.  He said: ‘I was an active member of the Samajwadi Party and did lot of work for the Party in the Maharashtra State of India.  Soon I became a popular figure in the State …’.

4. The appellant referred to the Bharatiya Janata Party (‘BNP’) and extremist groups supporting that party, and claimed to have received threats from those groups.  He referred to them being responsible ‘for many Hindu-Muslim riots in the country’, and said that in 1992 when the Babri Mosque was demolished: ‘my shop was also destroyed during this event and I was beaten severely and escaped for life’.  He said subsequently he was ‘always on the hit list of Shiv Sena and BJP extremists’, and received threats to him and his family and demands for ‘a heavy ransom’.  The appellant said his business was completely gone due to ‘consistent life threats and they beaten me up several times and the Police did not take any proper actions against the culprits as they are backed by BJP govt who is ruling the nation’.

5. He said that since the Gujerat train tragedy in February 2002:

   ‘I strongly condemned the acts of BJP leaders and their extremists group and they started threatening me as their enemy and decided to eliminate me and my family.  In order to achieve their objective they attacked recently in the month of Feb 2003 at my house and beaten me severely and my family also sustained injuries.  They threatened me to leave the place forever to save [my] life’.

6. The appellant claimed that the authorities in India were ‘biased and they act under the influence and direction of BJP leaders and govt’, and that there was no possibility of him relocating in another part of the country.

7. No supporting documents were forwarded to the Department nor subsequently to the Tribunal.

8. On 17 June 2003, a delegate of the Minister made a decision, refusing to grant the appellant a protection visa.  The delegate drew attention to the lack of evidence to support the claims and the extremely vague statements contained in the visa application.  The delegate also indicated an opinion that it was reasonable for the appellant to relocate to another area in India should he wish to avoid any perceived harm.

   THE TRIBUNAL

9. On 15 July 2003, the appellant sought review of the delegate’s decision by the Tribunal.  In that application, the appellant referred the Tribunal to the Department’s file and stated that he would provide a ‘detailed submission’ to support his claims.  Ultimately, however, no further evidence was provided to the Tribunal.

10. The appellant and his wife both attended a hearing before the Tribunal and gave evidence separately.  The Federal Magistrate below observed (at [12]):

    ‘The picture of the applicant’s involvement in politics which emerged was significantly different to the picture given in his visa application, as were the details of the events of which he claimed he complained.’

    THE FEDERAL MAGISTRATES COURT

11. On 23 December 2003 the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.  In doing so, it made the following findings:

    ‘The applicant husband claims that because of his active role as a supporter of the Samajwadi Party be has been targetted by Hindu extremists.  He claims his shop was destroyed in 1992 and that he has been targetted for harm ever since.  He claims he has had to constantly move residence to avoid threats and that those who wish to harm him have assaulted him in his own home.  He claims the harm consists of threats for money and also that he has to leave the party and the area.  He claims this has put himself and his family at risk of harm

    The Tribunal found the oral evidence of the applicants to be unconvincing and at times in conflict, and finds there is no real chance the applicants would suffer serious harm should they return to Mumbai for reason of the applicant husband’s real or imputed political opinion because he had supported the Samajwadi Party and has opposed the policies of Hindu nationalist parties.

    The Tribunal accepts that the applicant husband’s shop was destroyed in 1992 in the riots that followed the destruction of the Babri mosque.  However, the Tribunal notes that it was the applicant husband’s own evidence that other nearby shops were also destroyed and finds that this occurred, not because of the applicant husband’s political activities, but as a result of unfocussed rioting.

    The Tribunal does not believe that the applicant was ever a member of the Samajwadi party, or if he was, that his relationship was only slight.  The Tribunal makes this finding having found the applicant had a minimal knowledge of the background of the party.  The Tribunal accepts the independent evidence cited above that the party was formed as a result of a merger of two former parties in 1991 and thus -finds the applicant husband’s claim that he was a member before this to raise serious doubts as to his credibility.  The Tribunal further notes that it is the applicant’s own evidence that he had subsequently left the party and thus finds that he is still being pursued by Hindu nationalists to be implausible, and does not accept it.  Given the applicant’s lack of any leadership role, apart perhaps from some localised social welfare activities, the Tribunal finds as implausible, and does not accept, that he is pursued by Hindu nationalists as he claims whenever there is Hindu-Muslim conflict.  For the same reason, the Tribunal does not accept that he would have been “traced” and pursued to the Punjab as he claims.  The Tribunal further finds the applicants’ evidence with regard to the alleged assault in their home not to be credible, particularly given the conflict in their evidence as to the time of the alleged event, where it occurred in the house, and, most importantly of all, as to whether the applicant husband required medical treatment, and sought such treatment, from a doctor.  Moreover, the Tribunal finds their evidence that money was being demanded of him to be at variance with their claims that the assaults were for reason of his political opinion.  If indeed, he has been a target of assaults and threats for money, then the Tribunal finds that criminal intent, rather than politics, is the essential and significant motivation of those that were engaging in such behaviour.  The Tribunal is further strengthened in making the above findings that the applicant husband was not being pursued and harassed in the manner he claims by the fact that rather than relocating in Mumbai to avoid such attacks, the evidence from the applicant wife is that such changes in residence were a result of normal desires for better or more appropriate housing.  Further, each time they moved, it was for years at a time, which does not support the applicant husband’s claim that he regularly moved so that he could remain in hiding.  Moreover, he carried on his business from a fixed address, a further source of contact should those, who wished to do him harm, have wanted to find him.

    However, the Tribunal finds that should the applicants have any subjective fear of living in Mumbai, it is reasonable, in the particular circumstances of the applicants, for them to relocate away from any harm they fear in Mumbai to the Punjab or to one of the many other thousands of India’s cities and towns where they could live safely.  The Tribunal finds that any difficulties involved in any such relocation would not be insurmountable and, would be reasonable in the particular circumstances of the applicants.  In particular, the applicants have had ties to the Punjab, which would make this a particularly appropriate place for relocation.’

12. The Federal Magistrate reviewed the appellant’s claims before the Tribunal, the claims of his wife and the Tribunal’s findings in relation to those claims.

13. Ultimately, the Federal Magistrate concluded (at [23]):

    ‘I have carefully considered the Tribunal’s reasoning, and consider that it did identify and deal with the claims made by the applicant for the status of a refugee, and that its reasoning for rejecting significant aspects of those claims was open to it on the material.  I can find no jurisdictional error affecting its decision.’

14. In conclusion, the Tribunal found that there was not a real chance the appellants would face persecution in the foreseeable future for their religion, for any actual or imputed political opinion, or for any other Convention reason.  Therefore, the Tribunal found their fear was not well-founded.

15. Before the Federal Magistrate, the appellant pleaded a number of grounds in an amended application filed on 10 January 2005 which are summarized in the schedule to the Federal Magistrate’s reasons together with the Minister’s submissions in response which were, with one exception, namely ground (e), adopted by his Honour.

    THE APPEAL

16. The Notice of Appeal pleads two related grounds of appeal which arise from the findings of the Federal Magistrate in response to ground (e) of the Amended Application.  That particular ground (ground (e)) was framed as follows:

    ‘(e) The Tribunal erred in law by determining that the harm this applicant suffered in 1992 was [sic] due to a convention reason.

    Particulars: The tribunal accepted that the destruction of the applicant’s shop in 1992 was due to the riot following the destruction of the Babri mosque.  The Tribunal failed to ask itself the proper question whether the other shops destroyed during the riots belonged to any BJP and Shivsena activists.  By not asking this question, the Tribunal actually erred in law by determining that the destructions occurred because of unfocussed rioting.’

17. The Federal Magistrate’s response to this may be paraphrased as follows:

    1.As the particulars recognise, the Tribunal did address the appellant’s claims relating to his experiences in 1992 and made a finding which answered that claim by characterising the harm suffered by the appellant as not being the result of Convention‑related targeting ([28]). 

    2.The Tribunal’s finding that the harm suffered by the appellant and his wife was ’not because of the applicant husband’s political activities, but as a result of unfocussed rioting’ sufficiently addressed the claim.  The finding amounts to a conclusion that they were random victims in a period of rioting, so that their harm could not be characterised as ‘systematic’ as that term has been considered in refugee law ([29]).

    3.Finally, his Honour concluded ([30]):

    ‘I do not consider that as a matter of law the Tribunal was obliged to ask itself the question that the particulars claimed it failed to ask.  That question might in other circumstances have had a bearing on the factual issue of what motivated the attacks on the applicants’ property, but in the context of the present claims, which made no particular assertion that only BJP and Shiv Sena activists were targeted in the course of the rioting, I do not consider that the absence of any discussion of the point by the Tribunal gave rise to any jurisdictional error.  I am not persuaded that the Tribunal failed to address whether the applicant’s loss was the result of persecution for a Convention reason.’ 

18. The appellant argues that the Federal Magistrate’s finding on this issue was a mere endorsement of the Tribunal decision and not the correct assessment of the appellant’s evidence given at the Tribunal hearing.  Hence, it amounts to a jurisdictional error of the Tribunal.  I do not agree.  The findings of the Tribunal were clearly open to it on the evidence put before it and no error is established in its decision.  In my view, his Honour was correct in concluding that, as a matter of law, the Tribunal was not obliged to ask itself the question that the particulars claimed it failed to ask.

19. The appellant’s second ground of appeal was related.  It involved the submission that the Federal Magistrate failed to consider properly the appellant’s argument that the Tribunal failed to evaluate the issues involved and erred and that such error was endorsed by the Federal Magistrate when he said (at [29]):

    ‘In my opinion, the Tribunal’s finding that the harm suffered by the applicants was “not because of the applicant husband’s political activities, but as a result of unfocussed rioting” sufficiently addressed the claim.’

20. The appellant submitted that the Federal Magistrate’s finding in this regard was ‘definitely materially and factually a wrong assessment and therefore amounted an endorsement of a clear jurisdiction error made by the Tribunal’.  Again, I do not agree.  As I have said at [19] supra, the findings of the Tribunal were, in my view, clearly open to it on the evidence put before it and no error is established in its decision.  His Honour below was correct in concluding (at [23]) that the Tribunal’s decision was not affected by jurisdictional error.

21. The appeal must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:       12 May 2006

Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	2 May 2006
Date of Judgment:	12 May 2006