SZCMH v Minister for Immigration

[2006] FMCA 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCMH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 107

MIGRATION – RRT decision – Indian claiming persecution for political activities – disbelieved by Tribunal – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(c), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Abebe v The Commonwealth of Australia  (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
Luu v Renevier (1989) 91 ALR 39
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
NABE v Minister for Immigration (No 2) [2004] FCAFC 263
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v MIMA (2001) 185 ALR 703

First Applicant: SZCMH

Second Applicant: SZCMI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG95 of 2004

Judgment of: Smith FM

Hearing date: 23 January 2006

Delivered at: Sydney

Delivered on: 23 January 2006

REPRESENTATION

Counsel for the Applicant: Applicants in person

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicants must pay the first respondent’s costs in the sum of $5000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG95 of 2004

SZCMH

First Applicant

SZCMI

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 12 January 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 December 2003 and handed down on 23 December 2003.  The Tribunal affirmed the decision of a delegate which refused to grant protection visas to the applicants. 

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants should be believed, nor whether they qualify for a protection visa.

4. The present applicants are a husband and wife who arrived in Australia on visitors’ visas in March 2003.  On 1 May 2003 they applied for protection visas assisted by a solicitor.  The claims which they relied upon were made by the husband, and the wife made no separate claims to having a basis for a protection visa.  As did the Tribunal, where I refer to “the applicant” this is a reference to the husband. 

5. In his protection visa application, the applicant 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 Maharashta state of India.  Soon I became a popular figure in the state”. 

6. The applicant referred to the BJP Party 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 applicant said his business was completely gone due to “consistent life threats and they beaten me up several times and police did not take any proper action against the culprits as they are backed by BJP govt. who is ruling the nation”. 

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

   I strongly condemned the act of BJP leaders and their extremists group and they started treating 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 home and beaten me severely and my family also sustained injuries.  They threatened me to leave the place forever to save my life. 

8. The applicant 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. 

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

10. A delegate refused the application on 17 June 2003, drawing attention to the lack of evidence to support the claims and the vague statements contained in the visa application.  The delegate indicated an opinion also that it was reasonable for the applicant to relocate to another area in India should he wish to avoid any perceived harm. 

11. The applicants filed an application for review by the Refugee Review Tribunal on 15 July 2003, assisted by a migration agent, Mr Ajay Kumar.  The application for review said: “please refer to above department’s file”, and said: “a detailed submission will be filed later”.  No submission was ever filed. 

12. The Tribunal conducted a hearing on 24 November 2003 which was attended by both the applicants.  The Tribunal took evidence from them separately.  It gave a description of the hearing in its statement of reasons, and this is the best evidence I have as to what occurred at the hearing.  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. 

13. Initially, the only event of actual harm which the applicant referred to was that “in 1992 his small shop was burnt down.  He was asked if other shops had been destroyed and he said that they had in the riot”.  The applicant claimed that he was then in hiding for his safety and had lived at different addresses, but had been harassed for money.  He told the Tribunal that he had ceased to be a member of the Samajwadi Party in 1994 or 1995, and that he had not suffered any harm from the BJP.  The Tribunal asked him questions about the background and policies of the Samajwadi Party, and the applicant gave answers which revealed some lack of knowledge of that party and of the outcome of elections in Maharashta.  At the end of his evidence, the applicant told the Tribunal that in February 2003 he had been bashed in front of his wife and children but had not gone to a doctor. 

14. The Tribunal’s account of the evidence given by the applicant wife differed in some significant respects from the account given by her husband.  She also claimed that there had been an assault in February 2003, but said that it had occurred at “around mid‑day” as distinct from her husband’s claim that it occurred in the morning.  The wife also claimed that the husband had to go to the doctor.  The applicant wife’s evidence about the addresses at which they lived also differed from that of her husband. 

15. In its statement of reasons the Tribunal identified the claims which had been made by the applicant in his visa application, and referred to their evidence given to it, as I have sketched above.  It referred to country information concerning the relevant situation in India. 

16. Under the heading “Findings and Reasons”, the Tribunal presented its conclusion at the commencement, saying: 

    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.  

17. In relation to the destruction of the shop in 1992, the Tribunal said:

    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. 

18. The Tribunal then assessed the applicant’s claim to have been an active and popular member in the Samajwadi Party.  It concluded: “the Tribunal does not believe that the applicant was ever a member of the Samajwadi Party, or if he was, (sic: finds) that his relationship was only slight”.  The Tribunal referred to his minimal knowledge about the party.  It also referred to the applicant’s own evidence that he had left the party and said that it: “thus finds that (sic: his claim that) he is still being pursued by Hindu nationalists to be implausible, and does not accept it”.  It did not accept that, whenever there was Hindu‑Muslim conflict, the applicant was pursued by Hindu nationalists as he claimed. 

19. The Tribunal found the evidence of both applicants with regard to the alleged assault in their home not to be credible, particularly given the conflict in their evidence.  It said: 

    If indeed, he has been a target of assaults and threats for money, then the Tribunal finds a criminal intent, rather than politics, is the essential and significant motivation of those that were engaging in such behaviour. 

20. The Tribunal made a further finding that: 

    should the applicants have any subjective fear in 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. 

21. The reference to the Punjab arose by reason of that being the state of origin of the applicant husband and where he still had family. 

22. The Tribunal concluded that: 

    there is not a real chance the applicants might face persecution in the foreseeable harm for their religion, for any actual or imputed political opinion, or for any other Convention reason.  Therefore the Tribunal finds their fear is not well‑founded. 

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. 

24. Notwithstanding that the matter has been in the court’s lists for two years before coming on for hearing today, the applicant has filed only two documents and no written submission. 

25. His original application contained three assertions of jurisdictional error without any particulars allowing the assertions to be meaningfully addressed. 

26. An amended application filed on 10 January 2005 contains grounds (a) through (g), with what purport to be particulars.  I have considered each of those grounds and consider that the submissions by counsel for the Minister in relation to them sufficiently addressed them, and I adopt her submissions as my reasons for rejecting them, with one exception.  I shall set out the relevant parts of her submissions as a schedule to my judgment. 

27. I give the following reasons for rejecting the complaint made in ground (e).  This ground obscurely refers to an error of law, with particulars making the complaint: 

    The Tribunal accepted that the destruction of 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 destruction occurred because of unfocussed rioting. 

28. As the particular recognises, the Tribunal did address the applicant’s claims relating to his experiences in 1992, and made a finding which answered that claim by characterising the harm suffered by the applicant as not being the result of Convention‑related targeting. Under s.91R(1)(c) of the Migration Act, to which the Tribunal had earlier referred in its reasons, persecution is required to be characterised as involving “systematic and discriminatory conduct” before it can give rise to eligibility. 

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.  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 (see Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [18], [100], [193] and [223]).

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. 

31. The applicant appeared today with his wife and made submissions on behalf of both of them.  He was not able to provide any argument going to the legal issues which I had to determine.  His complaint was that the Tribunal should have believed him, and that he wanted to stay in Australia.  However, neither of these contentions allow me to make orders sending his case back for further consideration by the Tribunal. 

32. For the above reasons, I have concluded that the Tribunal’s decision is not affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I am obliged to dismiss the application.

I certify that the preceding thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  9 February 2006

SCHEDULE

1. Ground (a): failure to take into account chance of detention or persecution based on involvement with Samajwadi Party. 

   The respondent contends that this ground must fail.  The Tribunal explicitly dealt with the applicant’s claimed involvement with the Samajwadi Party at page 74.8.  It concluded that it did not believe the applicant was ever a member of that party, or if he was his relationship was only slight.  The Tribunal then noted that the applicant’s own evidence was that he had left the party, and, on the basis of that fact, the claim that he was still being pursued by Hindu nationalists was implausible and was not accepted. 

2. The applicant did not claim that he would be detained as a result of his involvement in the Samajwadi Party.  Further, the claim did not so obviously arise on the material before the Tribunal such as to require consideration within the principles in NABE v Minister for Immigration (No 2) [2004] FCAFC 263.

3. Ground (b): failure to assess the applicant’s involvement with the Samajwadi Party in terms of membership of ‘particular social group’.  

   The respondent contends that this ground must fail.  No claim was asserted before the Tribunal that past membership of a political party constitutes membership of a political social group, and nor did it so obviously arise on the material before the Tribunal such as to require consideration within the principles in NABE v Minister for Immigration (No 2) [2004] FCAFC 263.

4. Ground (c): failure to assess the state’s unwillingness or inability to offer the applicant protection based on the applicant’s usual activities in relation to the Samajwadi Party.  

   Given the factual findings made by the Tribunal that the applicant’s involvement with the party was, at its highest, ‘only slight’ and in the past, this issue did not arise. 

1. Ground (d): mistake in relocation finding.  

   The Tribunal set out its relocation finding at page 75.6.  In making the finding it considered any difficulties the applicant would face in relocation, and noted that the applicant had special ties to the Punjab.  On the basis of these considerations, together with the Tribunal’s finding made at pages 74.9 – 75.1 that it was implausible that the applicant would be pursued by Hindu nationalists, this ground must fail. 

2. Ground (e): the Tribunal failed to ask itself the proper question whether other shops destroyed during the riots belonged to any BJP and Shivsena activists.  

   This ground should fail.  The respondent contends the Tribunal was under no duty to investigate this issue by conducting further inquiries.  In NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 Jacobson J said:

   18.There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant.  The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).

   19.The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.  

   Justice Jacobson then referred to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. In Luu v Renevier (1989) 91 ALR 39 a Full Court of the Federal Court followed the decision in Prasad and said: 

   A decision is unreasonably made where, to the knowledge of the decision maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained. 

3. There is nothing before the Court to show that any such information existed, let alone that the Tribunal knew that it existed, nor that it was readily available.  The exceptional circumstances required to enliven the principle in Prasad do not arise in the present case. 

4. Ground (f): failure to determine whether the slight involvement with the Samajwadi Party or his personal ideology towards the philosophy of BJP and Shivsena would cause persecution. 

   First, the applicant’s claims of persecution were based on his membership of the Samajwadi Party, and no claim independent of this membership was made.  Second, the Tribunal dealt with the ‘slight involvement’ claim at page 74.8, noting that the applicant himself had claimed to have left the party, and that it was implausible that he would still be pursued by Hindu nationalists after he had left the party.  These findings were properly open to the Tribunal: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Kopalapillai v MIMA (1998) 86 FCR 547 at 558‑9; W148/00A v MIMA (2001) 185 ALR 703 at [64]‑[69].

1. Ground (g): This ground specifically relies on the particulars of grounds (a) – (d).  It must fail for the reasons given above in relation to those grounds.