SZDRV v Minister for Immigration
[2005] FMCA 165
•8 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRV v MINISTER FOR IMMIGRATION | [2005] FMCA 165 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – family dispute – no Convention ground – nature of discrimination – no jurisdictional error – privative clause decision – application dismissed. Migration Act 1958 (Cth) Dranichnikov v Minister for Immigration (2003) 197 ALR 389 |
| Applicant: | SZDRV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1617 of 2004 |
| Delivered on: | 8 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1617 of 2004
| SZDRV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 15 April 2004, and handed down on 11 May 2004.
The applicant is a citizen of India who arrived in Australia on 4 December 2003 on a visitor visa. On 15 January 2004 he applied for a protection visa which was refused by the delegate of the Minister on 5 February 2004. He lodged an appeal with the Tribunal on 1 March 2004. The hearing was held on 15 April 2004. On that day the Tribunal affirmed the decision of the Minister’s delegate, and the decision was handed down on 11 May 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate of the Minister and the Tribunal centred upon his concern that his brother wished to kill him to appropriate his assets. He claimed that in India a close relative acquires the property of another relative after they are dead. The applicant had built up good property and a high standing in Hyderabad from a successful software-programming business. He claimed his brother was jealous and wanted to kill him so that he could inherit the property. The applicant claims that his brother had criminal associates who were trying to kill him.
One night a theft occurred in his office. He went to the police about it, and the police found that his brother was responsible. He left for the United States after this for a few months. While he was away some people attacked his father-in-law’s house asking that the theft case be dropped. This seriously upset his wife. His father-in-law was also injured. The applicant was attacked when he returned to the house, but managed to get away safely. The police could not trace who had attacked him. His brother started defaming him, saying he had duped people and taken their money.
The applicant says he has been trying to evade these difficulties by first moving 600 kilometres away from Hyderabad, and eventually going to New Zealand with his wife for eight months. He returned to India to sell his property, but found his brother still ready to attack him to obtain his property. After about a year he came to Australia. His wife is in New Zealand and his son in India with grandparents. The applicant says that he has no political affiliation, but his brother is connected with powerful political figures.
The Tribunal decision
The Tribunal’s findings and reasons are set out in its decision as follows:
While I am sympathetic with the applicant’s situation, as explained to him at his hearing I am unable to find a Convention nexus in his claims, and that even if his brother used his political contacts against him I am not satisfied that the harm he fears is for reason of his real or imputed political opinion. He has been able to avail himself of police protection but has not proceeded with charges against his brother at his mother’s behest.
Even if he was able to satisfy me of a Convention nexus, it would be reasonable to expect that he could relocate elsewhere in India. He has been able to live some 600 km. away in Bangalore in the past. He speaks, reads and writes English, Telegu and Hindi fluently, has tertiary degrees and has had a successful business record. Even if he is unable to have access to his capital he could find a position in a company where his experience would be suitably recompensed.
The findings and reasons contain only two critical findings:
i)there is no Convention connection to the applicant’s claim; and
ii)even if there were a Convention connection, he would be able to relocate.
In my view, it is hard to characterise the statement about him availing himself of police protection as a finding of effective state protection.
The applicant's claims
The applicant’s claims are set out in his amended application which was filed on 9 November 2004:
1. The words “by reason of political opinion” in the Convention include the situation where a political party acts so as to assist a member of that party. Such acts are an exercise of the political party's powers as an entity in the society. The Tribunal erred in failing to so interpret and apply these words and by confining these words to a political opinion held, or attributed to, the Applicant.
2. The Tribunal held that it would be reasonable for the Applicant to leave his home and live somewhere else in India even that meant that he would have to forgo the benefit and use of his property and other assets in the area where he formerly lived. To require the Applicant to relocate in such circumstances is necessarily unreasonable in the ordinary sense of the word and it was not open to the Tribunal to find otherwise. In addition, by reason of so holding the Tribunal’s decision was unreasonable in the Wednesbury sense.
3. The Tribunal has an inquisitorial function. It should have asked questions, given that it was considering whether the Applicant could move to another area, designed to elicit whether it was reasonable for him to move given that he had always lived and worked in the area in which he formerly lived. The Tribunal did not investigate this adequately.
Consideration
Characterisation of the applicant’s claims before the delegate and the Tribunal
In his written and oral submissions, Mr Wilson for the applicant has asserted that the applicant’s claims to the Department and the Tribunal essentially were that the perpetrators of the harm against the applicant did so because of the perpetrator’s political opinion. For example, in the applicant’s outline of submissions he says:
2.1 The argument was that the acts of a political party to assist one of its members is itself political in nature as it is an exercise of political power, that is, it is part of that party’s political manifesto. By doing this it enhances its own status in a society and entrenches its position and power. The Tribunal did not consider this aspect of the Applicant’s case.
…
2.4 The Applicant claimed that his brother had engaged the assistance of other members of a political group to do acts towards him that were persecutory. The Tribunal accepted this (AB127). Should such persons do such acts pursuant to or in accordance with their political manifesto then the Convention nexus is satisfied.
The applicant says that the Tribunal erred because it only considered the real or imputed political opinion of the applicant, and not that of the contacts of the brother. The case put to the Department and the Tribunal, in the submission of the applicant, related to the political opinion of the persecutors.
The respondent replied as follows:
11. The respondent takes issue with the proposition that the applicant’s “case” or “argument”, as put to the Tribunal, was as the applicant contends in this submission. Nowhere did the applicant assert that his brother's contact, or that of the “powerful political figures” to whom he was said to be “connected” was motivated by political reasons, or that these political figures were assisting the applicant’s brother as “one of [their] members” or that what was being done was an exercise in political power, being part of “that party’s political manifesto”. The applicant was “unable to identify any political party his brother had connection to”. The applicant did not asset [sic] that his brother shared the political affiliations of these individuals, but rather that “his brother was connected with powerful political figures whom he was able to corrupt” (emphasis added.) The applicant's case was not that his brother was part of any political organisation, but simply that his brother had connections to people in authority, whom the applicant described as “political figures”, and whom his brother was apparently able to corrupt for his own ends, and not in pursuit of any political goal.
I agree with the submissions of the respondent. I note that there are references in the applicant’s claims to notorious criminals and political groups:
My brother wants forcefully to enjoy the property by eliminating me with the help of criminal gangsters and political group [sic]
At page 32 of the Court Book he says
He was having very bad connections.
But also at page 29 he says:
And my wife doesn’t want to come to me until I settle somewhere other than India as she is the primary witness and suffered for the criminal behaviour of my brother.
In my view, on a full and careful reading of the applicant’s claims, they do not support his assertion that his case before the Tribunal was that the acts of the persecutors were motivated by the political opinion of those persecutors. Rather, the claim in issue was that his brother wished to harm him to appropriate his assets, and that his brother had some assistance from cronies in a political group.
As the respondent has set out in its submissions, there was no assertion by the applicant that his brother was a member of any political group. There was no assertion that any political group assisted him for any political purpose. There was no “exercise of political power” as “part of that party’s political manifesto”. The case that is now said to have been advanced in the Tribunal was simply not put.
As the authorities such as Dranichnikov v Minister for Immigration (2003) 197 ALR 389 and SCAL v Minister for Immigration [2003] FCA 548 make clear, the Tribunal was only obliged to consider the case actually advanced by the applicant. Justice Kirby in Dranichnikov said:
The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances.
And von Doussa J in SCAL:
neither the delegate, nor the tribunal is obliged to consider claims that have not been made.
I accept the respondent’s submission that the case which the applicant submitted to this Court he had advanced at the Tribunal hearing was not in fact articulated expressly or implicitly to the Tribunal.
Construction of the Convention
The applicant submitted that the Tribunal’s construction of article 1A(2) of the Refugees Convention was too narrow. He referred specifically to the definition which provides that a refugee is any person who leaves his or her country of origin “owing to a well founded fear of being persecuted for reasons of political opinion …”. In essence he said that political opinion should be read to include the political opinion of the persecutors even if the applicant had no political affiliation or opinion as he agreed is the case here.
In his written submissions he says:
2. There are two errors in the Tribunal’s decision. The first concerns the Convention nexus with political opinion. The Tribunal has interpreted to mean that a fear will only be by reason of the political harm where someone threatens an Applicant with harm because of the political opinion held by the Applicant or because a person attributes a certain opinion (an imputed political opinion) to the Applicant, even if the Applicant does not in fact hold such opinion. …
2.1 However, this was not the Applicant’s case. …
2.2 The Tribunal erroneously directed itself that the political nexus serves to identify a motive for the persecution and that the only two ways that this nexus may be satisfied is by the existence of an actual or an imputed opinion.
2.3 The words “by reason of political opinion” serve the purpose of requiring a connection between the acts of persecution and political opinion and they do not limit the ways that this connection may be established to the two factual situations that the Tribunal described. Also, they do not require that the “political opinion” be confined to that of an Applicant whether, actual or imputed although this is often the usual case.
Mr Wilson said that this broader construction would make sense on a plain reading of the Convention. However, he could not point to any supporting authority. His reason was that this particular issue had not come up before.
In my view this submission is highly speculative and contrary to authority. As the respondent says in her submissions:
19. As the wording of article 1A(2) makes plain, the reason for the persecution being directed at the applicant must be one of the reasons enumerated, i.e. race, religion etc. It is clear from Convention reasons such as “membership of a particular social group” that the Convention reasons pertain to the applicant personally. The persecution must be inflicted because of the applicant's race, religion, nationality, membership of a particular social group, or political opinion.
…
21. The Tribunal was clearly correct when it said:
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the persecution need not be one of enmity, malignity or antipathy towards the victim on the part of the persecutor.
This construction of the Convention is supported by High Court authority in Applicant A& Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225. Similar statements can be found in other decisions of the High Court and of the Full Court of the Federal Court.
In Applicant A, as the respondent submitted, the head note captures the essence of the decision when it refers to McHugh J’s judgment:
The definition of “refugee” must be construed as a whole and not by isolating elements. The definition is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination which constituted a form of persecution and occurred because the person concerned had a particular race, religion, nationality, political opinion or membership of a particular social group.”.
Justice Brennan who was in the minority in this particular decision said at page 233:
Secondly, the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Art 1A(2).
Justice Dawson J said page 240:
The words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group [or “political group”] and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of the particular social group.
At pages 257-258 McHugh J held:
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution -- that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.
Similar statements can be found in the judgments of Gummow and Kirby JJ. Contrary to the submissions of Mr Wilson at the hearing I regard these statements as statements of principle by which I am bound.
In my view it is clear that the political opinion in question must be that of the applicant and once that is accepted it follows that the applicant's political opinion can be actual or imputed. I can find that the Tribunal committed no error of the kind submitted by the applicant. I reject this ground.
Relocation and failure to investigate relocation prospects
As the Tribunal found no Convention nexus (in my view without error), it is unnecessary to consider the other grounds, that is, the unreasonableness of the relocation finding and the failure to investigate the issue thoroughly. The applicant could not succeed with a protection claim in the Tribunal without demonstrating a Convention connection.
Conclusion
Counsel for the respondent Minister submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. On the grounds that I have given above I have been unable to find any legal error and I agree with the respondent Minister.
The findings by the Tribunal, in particular the finding that it was unable to establish any Convention nexus or connection for the applicant’s claim of persecution were reasonably open to it on the material before it. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to that decision.
I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its power. It clearly related to the subject matter of the Migration Act 1958 (Cth) and related to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 31 March 2005
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