SZCRO v Minister for Immigration
[2006] FMCA 382
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCRO v MINISTER FOR IMMIGRATION | [2006] FMCA 382 |
| MIGRATION – Review of decision of RRT – whether the tribunal failed to properly address a specific claim made by the applicant – adequacy of state protection – whether the Tribunal made finding without taking into account independent country information – whether the Tribunal took account of the country information on the wrong basis. |
| Applicant: | SZCRO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 355 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 March 2006 |
| Date of Last Submission: | 17 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 March |
REPRESENTATION
| Counsel for the Applicant: | Mr M Jones |
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 255 of 2004
| SZCRO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Israel. He arrived in Australia on
17 October 2002. On 11 December 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 December 2002 a delegate of the Minister refused to grant a protection visa and on
18 December 2002 the applicant applied for a review of that decision. The Tribunal took evidence from the applicant on 21 November 2003. On 19 December 2003 it decided to affirm the decision not to grant a protection visa and it handed down that decision on 16 January 2004.
The applicant's claims to the protection of Australia are found first in a statutory declaration made by him on 25 November 2002 and contained at CB 26-27. The applicant was born a Muslim but became interested in the Christian faith at school. He states at paragraph 12 of his declaration:
“Given the heightened political tension in my country where security resources are stretched to the limited (sic) it is highly unlikely that I can rely on the local authorities for effective protection.”
At the hearing the applicant told the Tribunal that from 1992 until his departure from Israel he worked in his father's business laying timber floors. In 1992 he changed his religion having become interested in Christianity whilst at school. This caused disruption in his family when they found out. They tried to stop him from converting. He told the Tribunal that he was hit with a belt by his father, although he says he was hurt but not injured. His father did not give him wages for a period of time but he remained in the house and remained at work in his father's workshop. Eventually the wages were resumed. He was not assaulted again. In 1999 he stopped going to church and ceased all contact with his friends. He read the Bible in his own room.
He decided that he would leave the country and go somewhere where he would not be followed. When the applicant arrived in Australia he joined a church known as the Grace Baptist Church and became what he described as "a born again Christian".
At the Tribunal hearing the Tribunal put to the applicant that independent evidence suggested that state protection would be available to him. He told the Tribunal that he thought the police would not pay attention to him because he was an Arab. He thought the police did not want to become involved in problems such as his because they had more important things to do. The police do not want to become involved in the problems of the Arabs:
“Although they will protect him, they will not give him enough attention.”
The Tribunal considered the independent evidence available to it that indicated that Arab Israelis were discriminated against within Israel in certain areas such as education, land use, social services and opportunities for government employment. But in its findings and reasons the Tribunal considers the situation with regard to the police force which was the relevant matter in dispute in this case. At CB76 the Tribunal says:
“There was no indication in the sources consulted by the Tribunal that Arab Israelis were denied protection by state authorities including the police or that there was an unwillingness to provide Arab Israelis protection because of their ethnicity. Nor is there any evidence in the independent sources that heightened tension in the region had stretched the resources of the state beyond its ability to provide protection to Arab Israelis or to have given rise to an ingrained attitude of reluctance amongst the police to provide protection to Israel's Arab citizens. ... The Tribunal does not accept that the discrimination which Israeli Arabs face in relation to matters such as education, housing, employment and social services means that police are unwilling to protect Israeli Arabs from criminal acts by other Israeli Arabs. Indeed, the applicant acknowledged at the hearing that the police will protect you but claimed that he will not receive attention. The Tribunal appreciates his concerns. However, absolute protection of an individual is not required and state protection by no means implies that the authorities must or can provide absolute guarantees against harm. The Tribunal on the basis of the evidence before it is satisfied that if the applicant returned to Israel the government will protect him with an adequate and effective level of protection to remove a real change of his being harmed by members of his family, or the Muslim community in his village.”
The Tribunal went on to make a finding that the applicant could relocate to a different part of Israel if he was fearful of returning to his locality. In short, the Tribunal made three findings. First, the applicant had not suffered persecution. Second, there was adequate state protection in the event of his return to his country and third, that if he wished he could relocate to another part of the country where he would be in no danger.
The application filed on behalf of the applicant states that the Tribunal's decision involved a jurisdictional error of law:
“In that the Tribunal misdirected itself as to the obligations of the state to provide protection to its citizens regardless of race, religion or nationality.
Particulars.
The Tribunal accepted that the state of Israel provides a lesser degree of protection from harm to non-Jewish, and in particular Arab citizens but disregarded this on the basis that no state can provide absolute protection. This discrimination could reasonably be expected to lead to serious harm coming to the applicant and therefore amounts to persecution for reasons of race, religion or nationality.”
In his outline of submissions for the applicant Mr Jones makes a slightly different point. He argues that the Tribunal's findings about freedom of movement and religion and adequacy of protection are all based upon the treatment of the majority population by the Israeli government. He says that the Tribunal failed to adequately assess the applicant's claims in respect of his special vulnerability as a member of the Arab minority. Mr Jones also argues that the findings by the Tribunal of no persecution and relocation are findings made taking into account the independent country information and presumably having taken that into account on the wrong basis. In other words there are not three separate findings there is really only one finding divided into three different classes. I would dispute this. I think there are three separate findings. I think the finding of no persecution is clearly shown to be based upon the applicant's own story of what occurred to him in his family home and village. The Tribunal looked at the complaints that he had made about his treatment and came to the conclusion that it did not warrant the sobriquet of persecution.
That had nothing to do with the way in which Arab Israelis are treated or not treated by the security forces.
The Tribunal then went on to consider the question of adequate state protection and while it did find evidence of discrimination by the government of Israel against its minorities, in particular its Arab minorities, it found discrimination in certain particular areas but not in others. It found no evidence of discrimination of that type by the police force in relation to its duty to enforce the criminal law. It sets this out in terms. In the absence of any evidence in the contrary
I cannot interfere with the Tribunal's views about the Israeli police force that are expressed so clearly and so logically in the Tribunal's findings. Finally, the Tribunal makes an entirely independent decision concerning the question of relocation. It concludes that as the applicant's stated complaints were all related to the situation within his own family and his own village it would not be difficult for the applicant to relocate elsewhere in Israel where it was satisfied he would be able to practise his religion freely. The Tribunal notes that the government of Israel has no policy preventing internal movement and, with the exception of access to military or security zones, a citizen was entitled to reside anywhere.
In all the circumstances I am unable to see how the Tribunal fell into jurisdictional error in the way in which it came to its decision in this particular case. I do not accept the applicant's suggestion that the Tribunal looked at the matter from the point of view of the Israeli majority as opposed to its minorities. I must dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $5,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 17 March 2006
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