SZDSK v Minister for Immigration
[2005] FMCA 303
•4 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDSK v MINISTER FOR IMMIGRATION | [2005] FMCA 303 |
| MIGRATION – RRT decision – Indian Harijan – Tribunal finding no persecution, adequate State protection and reasonable relocation – no jurisdictional error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Part 8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicant: | SZDSK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1651 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 4 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1651 of 2004
| SZDSK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 April 2004 and handed down on 18 May 2004. The Tribunal affirmed a decision of a delegate of the Minister refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a case such as the present is the general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that the Court cannot set aside a decision of the Tribunal and send the matter back for further consideration unless the Court is satisfied that the Tribunal decision was affected by jurisdictional error. The Court does not itself have power to decide whether the applicant is a refugee or should be given a protection visa.
In the present case, the applicant arrived in Australia in October 2002 on a one month visitor’s visa. He made an application for a protection visa on 29 November 2002. His application attached a brief statement setting out the basis on which he claimed to fear persecution if he returned to his country of nationality, which was India.
The Tribunal in its reasons sufficiently summarised the applicant’s initial claims:
The applicant’s initial claims to protection are contained in a one and a half page typed document titled “statement of claim”. In this document the applicant claimed that he belonged to a family of low caste Hindus. He referred generally to discrimination faced by those belonging to low castes and to reports in which those of low caste have been burned alive. He referred to his involvement in forming a social committee to uphold the rights of low caste Hindus in his district. He claimed that he and other office bearers of this group were assaulted and humiliated. He claimed to have been “roped into many false cases”, beaten by Hindus of the upper caste and confined without lawful reason. He claimed to have been persecuted many times and discriminated against on the basis of his race, his caste and because he belonged to a particular social group. He claimed that his life was in danger and so he fled to Australia. In broad terms most but not all aspects of these written claims were repeated by the applicant in his oral evidence.
The Tribunal describes further statements made by the applicant in the course of a hearing which he attended on 17 February 2004. In the absence of the transcript of that hearing, and in view of the careful language in which the reasons are generally expressed, I accept the Tribunal’s narrative as to what occurred at the hearing.
The Tribunal discussed in its reasons independent evidence concerning the situation of the Harijans or untouchables in India, and refers to affirmative action taken in parts of India to overcome discrimination against them.
Under the heading “Findings and Reasons”, the Tribunal gives the following introduction to its conclusions:
I found the applicant’s claims and evidence about the actual harm he feared in India owing to his scheduled caste background as a Harijan to be general and somewhat vague. In particular he was unable in his oral evidence to point to the specific nature and extent of the harm he feared in India.
In addition, the applicant’s evidence that he obtained 13 years of education, which included a three year diploma in mechanical engineering, his ability to read and write three languages including English and Hindi and his family ownership of several acres of land is difficult to reconcile with independent evidence before me which suggests that Harijans (Dalits) are among the poorest of citizens, generally do not own land, and are often illiterate.
However, the independent evidence before me also indicates that there are a range of measures in place including affirmative action programs in the areas of employment and education, to redress imbalances owing to caste. In my view, the applicant’s level of education can be reconciled with the existences of such programs. I do not accept his assertion that he did not receive these things. I accept that the applicant belongs to a scheduled caste, the Harijan, but I also find that he has had the benefit of affirmative action programs in obtaining his education. I further find that he could continue to avail himself of these programs in the areas of employment if he so chose.
The Tribunal then notes that apart from a single incident of being tied to a tree and beaten, the applicant had not referred in his oral evidence to other specific incidents of actual harm which he had suffered, but it did note that he had referred to people of the high caste burning homes and crops owned by those of the low caste, and a claim that his home had been burnt in 1992.
The Tribunal said that it accepted that the incident in which the applicant was tied to a tree and assaulted by individuals belonging to the higher caste occurred, but it said that on the evidence before the Tribunal it was unable to make a finding about when the incident occurred.
The Tribunal accepted that there may have been other incidents in which the applicant was mistreated by those of the higher castes, but it thought that if the applicant had genuinely felt that his physical safety was seriously and systematically threatened over a number of years, then it was surprising that as an educated man he had not taken some steps to complain or simply remove himself from his situation.
The Tribunal did not accept the applicant’s evidence that he did not complain to the police because they never helped. The Tribunal also did not accept the applicant’s claim that wherever he went his caste difficulties would follow him. The Tribunal thought that the independent evidence showed that caste differences were not as prominent in Indian cities.
The Tribunal’s conclusion about the applicant’s fear of harm by reason of his caste was as follows:
I accept that the independent information which indicates generally that low caste people face disadvantage and caste continues to be significant in social life. I accept that the applicant may have experienced social discrimination in the form of not being able to touch those of the higher castes or to go to the same temple. Although this discrimination is unacceptable in my view it does not constitute serious harm, in the sense explained in s.91R(2) of the Act.
I am not satisfied on the evidence before me that the applicant has suffered harm so as to amount to persecution. He has obtained an education and could access government sponsored employment opportunities for those belonging to scheduled castes. I do not accept that the applicant has experienced persecution in the past owing to his caste background or his involvement in a group promoting the interests of those of low caste and opposing the interests of those of high caste. Notwithstanding the applicant’s past difficulties in India, I am not satisfied on the evidence before me that his experiences give rise to persecution of him as required by s.91R(1) of the Act and in the sense as explained by s.91R(2) of the Act.
The Tribunal based its ultimate conclusion, that it was not satisfied that the applicant was a person to whom Australia had protection obligations, not only upon the above conclusion. It also found two other independently operating reasons. The first of these is found in the following paragraphs:
Further, the information before me does not indicate that discrimination and violence towards lower caste Hindus occurs with impunity or with the complicity of the authorities although there is clearly some distance to go towards removing discrimination and abuse. Nor does the independent evidence indicate that the authorities or government organises or promotes physical attacks on low caste persons.
…
I find that there are avenues of protection in India available to persons who fear that their rights may be abused. Independent information is that there is a fair if slow legal system, a functioning police force, a National Human Rights Commission and a number of human rights organisations. The applicant does not dispute that these mechanisms exist. However, he claims that those with money and power can use the police and politicians, and that even a person who had a good caste would not win unless they had money. I accept that those with money and power can at times influence the outcome of legal proceedings. Nonetheless, I find that the applicant is able to access the protection of the state against threats of harm emanating from those of higher castes and such protection would not be denied to him for any Convention based reason.
The second additional reason given by the Tribunal for affirming the decision was:
In addition, in my view it is reasonable for the applicant to move elsewhere in India and avoid the harm he fears in X from individuals belonging to higher castes.
The Tribunal explained this conclusion by making reference to the applicant’s personal qualifications and work experience.
I have read the Tribunal’s reasons carefully and am unable to find jurisdictional error revealed in those reasons. I consider that the Tribunal has properly identified the claims made by the applicant and has carefully considered them before arriving at its conclusion. I consider that its use of independent information accorded with the Migration Act.
The applicant has been unrepresented in this Court but has today been assisted by an interpreter in a language of his choice. The hearing was adjourned on one occasion to allow that to happen. He has filed an application which is handwritten and contains in paragraphs (a) to (h) grounds for an application. As I shall indicate, most of those grounds are not pleaded with sufficient detail to allow a Court to understand their relevance to the present Tribunal decision.
The applicant attended with an interpreter at the first hearing date on 9 September 2004, where he was directed to file an amended application giving particulars of each ground relied upon, and was ordered to file and serve written legal submissions 14 days before the hearing date which was appointed for 17 February 2005. As I have indicated, that hearing date was adjourned to today due to the lack of an interpreter.
The applicant has filed a document headed “Amended Application” which copies the previous application but adds three further paragraphs (j) to (l). I shall address these grounds below.
He has not filed a written submission, and today has not sought to make any oral submissions to me but has asked that I consider the grounds put forward in his application. I shall do so one at a time by reference to the paragraph numbering used by the applicant.
Paragraph (a) claims:
The decision maker erred in replying on what has become known as Doctrine of ‘Effective Protection’ which has been referred to in Thyagaraja and subsequent cases …
This allegation is misconceived and has no application to the present case, since the Tribunal did not consider that the applicant had effective protection in a third country, but addressed and dealt with the applicant’s claims to fear persecution in his country of nationality. There is, therefore, no substance in this ground.
Paragraph (b) claims:
The decision maker did not follow proper procedures as required by the Migration Act …
but gives no particulars of procedures which are alleged not to have been followed. I have not identified any such procedure, and in the absence of particulars I regard this ground as without substance.
Paragraph (c) claims:
The Tribunal involved in improper exercise of power.
Without particulars, I can find no substance in this claim.
Paragraph (d) claims:
The Tribunal decision was made in bad faith and without regards to the merits of case.
There is no substance in this allegation. The Tribunal did not, in my opinion, act in bad faith and certainly had regard to the merits of the applicant’s case.
Paragraph (e) claims:
The Tribunal decision involved an abuse of power in making its credit finding.
I do not consider that the Tribunal made any error in relation to its findings concerning the applicant’s credit. Moreover, the Tribunal in substance accepted the applicant’s account as presented at the hearing, and did not decide the case based on credit but upon its objective assessment of the applicant’s account in the light of country information that was available to the Tribunal.
Paragraph (f) claims:
The Tribunal did not believe the applicant.
As I have indicated, I consider that such a claim has little relevance to the present Tribunal’s decision. Moreover, the complaint does not allege an error which would constitute a jurisdictional error.
Paragraph (g) claims:
The Tribunal failed to investigate the applicant’s claims.
I am satisfied that the Tribunal did investigate and consider the applicant’s claims in a manner required by the Migration Act.
Paragraph (h) claims:
The decision maker had identified wrong issue asking himself wrong question, ignoring the relevant material, making erroneous finding and reaching a mistaken conclusion, thereby committing an error of law constituting jurisdictional error.
I am unable to give these propositions any substance in the absence of particulars relating them to this particular Tribunal’s decision.
I now turn to the additional three grounds pleaded in the amended application.
Paragraph (j) claims:
Even though Tribunal has stated in the judgment about many reforms for Harijans in India, it failed to understand the reality of the high handedness of the upper caste Hindus and of their cruel mentality which may go to the extent of eliminating the Harijans or any person who may oppose them.
Reference is then made to “a recent incident”. The complaint made in this paragraph, in my view, goes only to the Tribunal’s assessment of the situation in India and does not identify error which amounts to jurisdictional error.
Paragraph (k) claims:
The Tribunal also failed to view my application on humanitarian grounds even though it understands the plight of Dalits in India where most of the government and police functionaries or upper caste Hindus with a vengeance mentality.
This complaint, in my view, suffers from the same difficulties as paragraph (j), and I reject it as raising a proper ground of judicial review.
Paragraph (l) is a request that I should:
… dismiss the decision of the Tribunal and render justice to me.
I understand the plea involved in this request but as I have explained to the applicant, the position of the Court requires it to be able to find jurisdictional error in the decision of the Tribunal before it can assist the applicant to have a further consideration of his claims.
For the above reasons I have not been able to find jurisdictional error, and I must dismiss the application.
RECORDED : NOT TRANSCRIBED
I shall order that the applicant pay the respondent’s costs in the sum of $5000.
I certify that the preceding thirty‑three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 March 2005
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