SZEGE v Minister for Immigration
[2005] FMCA 527
•21 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGE v MINISTER FOR IMMIGRATION | [2005] FMCA 527 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – Christian – member of Trinamul Moral Congress Party – merits review – factual findings of the Tribunal – fear of persecution – serious harm – no error of law – application dismissed. |
| Migration Act 1958 (Cth) |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZEGE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2621 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 21 March 2005 |
| Date of Last Submission: | 21 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Advocate for the Respondent: | Ms A Alex |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursement of and incidental to the application fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2621 of 2004
| SZEGE |
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 a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 30 June 2004 and handed down on
27 July 2004.
Background
The applicant is a citizen of India. He resided in Calcutta and is of the Christian religion. He arrived in Australia on 8 April 2004 and applied for a protection visa on 20 April 2004. That application was refused by a delegate of the Minister on 21 April 2004. The applicant lodged an application for review of this decision in the Tribunal on 10 May 2004. He attended a hearing of the Tribunal at which he gave oral evidence on 17 June 2004. As already noted, the Tribunal handed down its decision on 27 July 2004.
Claims before the Department and the Tribunal
The claims before the delegate and the Tribunal appear to be centred principally on political opinion or imputed political opinion and possibly religion. I note however that very little supporting material was provided in relation to any claims based on religious belief.
The applicant says he has been a member of the Trinamul Moral Congress (the TMC) for six years. He was a very active member. He alleges that he was in fact the “Block President” of the party, that is the local branch President. But several times members of the Communist Party of India (CPI-M) in West Bengal attempted to coerce him into joining their party.
He tried moving around India to avoid the harassment and threats that he received from the CPI-M because of his membership of the TMC. In the end, after threats of death, he decided to leave India. The threats against him and his family were so great that he sent his daughter to a boarding school in Darjeeling to save her life as well as to give her a good education. He also sent his wife to her father’s house.
He also alleges that several times people tried to burn down his house when the family were sleeping inside. He converted to Christianity and because everyone knew that the family were Christian they treated them differently and did not invite them to their festivals. On festival days he would lock up his doors not liking to intrude since he and his family were not invited.
Before he left Calcutta the applicant alleges he was verbally abused, pushed around and slapped in the face by local youths. He was also threatened so he left the country secretly at midnight.
Tribunal consideration and decision
The Tribunal noted that it had before it a departmental file which included the protection visa application, including the applicant’s statement which is reproduced at Court Book pages 28-31. The Tribunal conducted an oral hearing on 17 June 2004 at which it raised a range of issues with the applicant.
Subsequently the applicant’s migration agent provided a further submission which is set out at Court Book pages 57-66. To this was appended a letter reproduced at Court Book pages 67 and 68 from a
Mr Eshaque.
In its findings and reasons the Tribunal considered the various claims made by the applicant. It accepted that he was a member of the Trinamul Congress and had been since 1998 and that he may have been “Block President” of the party. It found that he was a “low-level activist with an insignificant and uninfluential political profile”. It found that he may have been harassed from time to time being verbally abused, pushed around and slapped in the face by local youths when he was on the way to market. But the Tribunal found that this did not reach the standard of persecution required by the Convention.
It looked at certain threats that had been made against the applicant, including a claim that a local youth had tried to burn down his house in November or December 2002. It found that this threat had been designed to merely intimidate the applicant. It was not satisfied that the intention was to carry out any threat against the applicant’s life.
The Tribunal considered the claims made by the applicant that he went into hiding, but noting that he had returned to Calcutta on a number of occasions. The Tribunal considered the letter from Mr Eshaque but did not attach any significance to it.
It further examined the applicant’s claims that he had been hampered in his business activities but concluded that the applicant had not suffered significant economic hardship in the past. The Tribunal was not satisfied that he would be denied a capacity to earn a livelihood of any kind in the reasonably foreseeable future in India.
The Tribunal also considered the verbal abuse suffered by the applicant’s wife, but found that it did not reach the standard of persecution required under the Convention.
After having briefly referred to independent country information on inter-party rivalry between the CPI(M) and the TMC the Tribunal concluded at Court Book page 89:
Overall, the applicant did not have a significant political profile and his activities do not suggest that he was perceived by his adversaries as having political influence. The Tribunal has already found that the applicant’s experiences in the past do not amount to persecution and is satisfied that if the applicant returned to India and continued to engage in political activity at the same level as he has in the past there is no real chance that he would face harm as a result.
The Tribunal then examined the applicant’s claims relating to his conversion to Christianity. It pointed out that the applicant did not make any claim to have suffered any harm or to harbour any fears of harm as a result of his religious conversion.
The applicant claimed that as a result of his conversion other children did not play with his daughter. On this point the Tribunal concluded that it was not satisfied that such an experience amounted to serious harm within the meaning of the Convention.
Having found that there was no real chance that the applicant would face persecution on his return to India, the Tribunal then considered the issue of relocation. It concluded that it would be reasonable for the applicant to relocate to another part of India, although in view of its earlier findings this was not necessary.
Having considered the evidence as a whole, the Tribunal decided that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.
Consideration
The applicant sought to have the hearing in this Court adjourned for a further four weeks to allow him to engage a lawyer. I refused that application as in my view the applicant had had ample opportunity to engage a lawyer since the Tribunal handed down its decision and since the first directions in this matter were held. Furthermore, at the first directions it was made clear to the applicant that the hearing would go ahead on 21 March 2005, whether or not he was represented.
In the written submissions handed up by the applicant at the hearing he made new allegations of actual bias and bad faith on the part of the Tribunal. If, by this, he was seeking to further amend his application, I refused him leave, noting that such allegations are required under the Rules to be well particularised and detailed. I indicated that it was far too late to bring these allegations on the day of the hearing. Furthermore, having regard to the material in the written submissions, such allegations were doomed to fail.
The claims set out in the applicant’s amended application filed on
22 November 2004 are somewhat unclear. Only one ground appears to be alleged:
That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
The particulars seemed to suggest that the applicant was claiming that the Tribunal did not properly consider his claims based on his political involvement or on his religious beliefs.
I have set out above in some detail the approach taken by the Tribunal and its reasons for decision. The applicant’s claims based on his political involvement were set out in his statement at Court Book
pages 28-31. This was supplemented by a brief statement to the Tribunal at Court Book page 53 and further material in the migration agent’s submission at Court Book pages 59-68.
The Tribunal set out these claims in its decision at Court Book
pages 78 and following, including information gleaned from the oral hearing on 17 June 2004. In its reasons the Tribunal carefully considered the applicant’s claims of alleged harm resulting from his involvement with the TMC, including claims that he was verbally abused, pushed around and slapped in the face by local youths, that his life was threatened by the same people who harassed him, that there were attempts to burn down his house and that his business activities had been hampered.
On the evidence before it the Tribunal concluded that the applicant did not have a significant political profile, that his past experience did not amount to persecution and that if he returned to India there would be no real chance that he would face harm as a result of continuing to engage in his political activity. These findings were clearly open to the Tribunal on the evidence it has in front of it.
As far as any claim based on his conversion to Christianity is concerned, the Tribunal examined the scanty details provided by the applicant, and again was satisfied that there was no serious harm within the meaning of the Convention to the applicant. This finding was also clearly open to the Tribunal on the material before it.
Any suggestion that the Tribunal had failed to consider the claims properly before it must be rejected.
The material handed up at this hearing in the applicant’s so-called written submissions provides no further support for this ground. As I have already indicated it alleges a breach of the rules of natural justice in a number of ways which were not pleaded in the amended application. I refused leave to amend the application to consider these grounds as they were doomed to fail.
The amended application also asserted that the decision of the Tribunal “was not based upon reasoning which provided a rational or logical foundation” for its disbelief of some of his claims. This must also be rejected. A fair reading of the Tribunal’s decision with the material that it had before it suggests there was no lack of rationality or logic in its decision.
The third particular in the amended application states that the Tribunal did not observe the Migration Act 1958 (Cth) (the Act) properly in making the decision. No further particulars are provided in support. It too must be rejected.
The fourth particular says:
I fail to collect supporting documentary evidence because nobody help me to collect relevant documents.
This statement does not suggest any legal error in the decision of the Tribunal.
Conclusion
It is clear to me that the applicant’s main dispute is with the facts as found by the Tribunal. He is asking the Court to engage in merits review, something which I told the applicant is not within the power of the Court.
I invited the applicant at the hearing to put anything to me that might insist in identifying a legal error, but he was essentially unable to expand upon his amended application and the material set out in his written submissions.
Counsel for the respondent Minister submitted to me that the application must be dismissed as no reviewable legal error had been disclosed. I agree. The Tribunal was clearly not satisfied that on return to India the applicant would be in danger or face a real chance of persecution. This finding was reasonably open to the Tribunal on the material before it.
I am unable to discern any legal error going to jurisdiction made by the Tribunal in coming to its 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 powers. The decision clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
In the circumstances, the application must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 29 April 2005
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