SZEMK v Minister for Immigration - [2005] FMCA 1860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMK v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1860

MIGRATION – RRT – Indian applicant claiming persecution by political opponents – Tribunal found adequate state protection and relocation available – no error found.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZEMK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2961 of 2004

Judgment of:

Smith FM

Hearing date:

29 November 2005

Delivered at:

Sydney

Delivered on:

29 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms O Mak

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2329 of 2004

SZEMK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 13 August 2004 and handed down on 7 September 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
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), but is subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The present applicant arrived in Australia on a visitor's visa in January 2004. He applied for a protection visa on 29 January 2004. In his application he indicated that he was a man aged 22 from Haryana in India, speaking Punjabi, and of the Sikh religion.
In his application he explained why he left India and sought protection from Australia. His claims were summarised by the Tribunal in its reasons, in my opinion accurately, as follows:
The Applicant became involved in politics through his uncle and his uncle’s party (Indian National Congress Party hereafter INC). He worked very closely with the Party, and was targeted by his uncle’s political opponents. The Applicant was active in campaign work for his uncle and as a result he made a lot of enemies in his area. The Applicant also claimed that he was involved in recruiting young men to the Party, that he was a youth leader of the youth congress and was always targeted. In October 2003 his uncle’s political opponents beat him up badly and abducted him for five days; after being released the Applicant was in hospital for five days. The Applicant thought he would be killed and his abductors also threatened to kill his family. The abductors threatened to attack the Applicant again if he continued to recruit young men for politics. The Applicant’s family thought he should leave India and they contacted a travel agent. The agent demanded more money after arrival in Australia, threatened the Applicant with arrest if he refused to pay, and kept the Applicant’s passport. The Applicant claimed to fear for his life because of politics and race. In response to other questions on the form the Applicant stated that he will give reasons at an interview.
A delegate refused the application on 2 April 2004, essentially for the reason that the applicant “will not be wanting in protection should he return to India”.
The applicant appealed to the Refugee Review Tribunal, and did not present any additional material. He attended a hearing held by the Tribunal on 23 July 2004. A transcript of the hearing is not in evidence before me, but the Tribunal gives a summary which I have no reason to doubt.
The applicant explained to the Tribunal that he had joined the INC in 2000 before finishing high school, and became a youth leader in January 2003. He told the Tribunal that political activity resumed with a big campaign in October 2003, and gave the following description of his abduction in October 2003 and subsequent events:
The Applicant described the abduction on 15 October 2003 and said that as the perpetrators wanted to destroy his uncle’s political career they told him to stop helping his uncle and working with the INC youth group and to get his uncle to withdraw from politics. When he refused their demands he was beaten and his arm broken. He was released after agreeing to the demands. The Applicant now claimed that his uncle reported the incident to police and police took the Applicant’s statement while he was in hospital. He couldn’t say where he was taken and the perpetrators did not identify themselves but the Applicant said they were from an/the opposition party; he then said that they were from the Indian National Lok Dal (INLD), the party then in government, and as such they have power and don’t care what other parties say. The Police said they would look for the perpetrators but after two months they said they couldn’t find anyone. Police wanted information about the place he was detained but the Applicant was unable to provide any useful information. The Police couldn’t do much because of his lack of information but they said that because he suffered serious injury they would charge the perpetrators under Clause 26 which carries a jail term of seven years. The Applicant claimed that they just said this to please him but they didn’t do anything. After a few days they asked the Applicant more questions about the perpetrators and the place but he didn’t know much.
The Applicant’s uncle told Bhajan Lal about the incident; Bhajan Lal had some influence over the Police and tried to investigate but without success. However, he said that if (when) the INC was in power, they’d ensure the perpetrators were punished. The Tribunal asked how this would be possible if he couldn’t identify the perpetrators; the Applicant replied that he saw their faces and described them to police but police wanted proof. The Applicant then claimed that he knew their names and gave the names to police but when police checked they found that they had an alibi. The Applicant claimed that this gave the Police an excuse not to do anything as they don’t do much against those in power.
After this the Applicant received telephoned threats saying that if he or his uncle gets involved in politics they’ll be killed. Despite this they participated in the December rally at which time the Applicant and some friends were attacked at a juice shop; the Applicant went into the shop, closed the door and called the Police. The Police came but the “boys” had gone; the Police took the Applicant home. The Applicant’s family were worried and told him to leave India; they arranged for him to come to Australia. Since the Applicant has been here his uncle’s “political status” is not that good because as the Applicant wasn’t protected, Party members and workers don’t think they’ll be protected. After the juice shop incident the Applicant went to stay with relatives in UP state until he came to Australia; he had no problems in UP as he mainly stayed at home and no one knew he was there.
The Tribunal indicated that it put to the applicant a number of matters which it saw as diminishing the risk of harm if he returned. This included recent media items about “the massive swing to the INC and against the INLD in Haryana in April 2004 national elections”, which included winning in his district and most other Haryana districts. The Tribunal also put to the applicant that it seemed reasonable for him to relocate elsewhere in India, including in states with an INC government. It appears that the Tribunal also canvassed with the applicant independent information about the availability of adequate state protection.
Under the heading: "Finding and Reasons" the Tribunal accepted the applicant's claims in relation to his involvement in political activities. Although it had some concerns about the truth of the applicant's claim to have been abducted, it said: “for the present purpose the Tribunal accepts the applicant's account of this incident”. It also accepted his account of the 25 December 2003 incident at the juice shop.
However, the Tribunal concluded:
However his account of the October 2003 incident and its aftermath, does not suggest that he was denied adequate state protection for a Convention reason; the matter was reported, the Police investigated the matter and it appears from his account that they had insufficient evidence on which to proceed against anyone. Although the Applicant made assertions about why the Police failed to apprehend the perpetrators there is no independent information before the Tribunal to suggest that the Police fail to act if the victim is from a party not in government in the state. Furthermore, the Applicant’s account of the incident in the juice shop on 25 December 2003 also indicates that adequate state protection is available and that it was not denied to the Applicant for a Convention reason. The Tribunal is satisfied that adequate state protection is available and would not be denied to the Applicant for a Convention reason, should the Applicant face similar problems upon return.
The Tribunal rejected as "speculative" the applicant's claim “that the abductors may wish to finish him off as they have nothing to lose if they think they will be punished anyway for the abduction, if the INC gets into government in Haryana”. I would read the Tribunal's use of the word "speculative" as implying a finding that this fear was too remote to be regarded as a real chance, rather than as overlooking this test. The Tribunal correctly referred to the real chance test in its earlier discussion under the heading “definition of ‘refugee’”, and I consider that a benign reading should be given to this finding (c.f. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291).
The Tribunal also gave a further reason for affirming the delegate's decision, which was that:
If the Applicant fears problems on return from INLD people generally, the perpetrators of the October 2003 incident, or from Chautala, for reasons associated with his activities on behalf of the INC and/or with his uncle, and/or because they want to finish him off, the Tribunal is satisfied that as these are very localised concerns, it is reasonable for the Applicant to relocate elsewhere in India.
The Tribunal referred to a number of rational reasons in support of this conclusion. It then concluded that it was not satisfied that the applicant: “has a well-founded fear of persecution within the meaning of the Convention”. It noted that the applicant had originally referred to fearing harm for reason of his race, but said there was nothing in his written or oral evidence to support such a claim.
I have considered the Tribunal's reasoning, taking into account that the applicant apparently has had no legal help other than obtaining advice under the free legal scheme. However, I have not been able to identify any jurisdictional error in the procedures or reasoning of the Tribunal. I consider it has addressed the applicant's claims, and that it was open to it to reach its conclusions on the material before it.
The applicant's application filed in this Court on 29 September 2004 described as the grounds of the application:
The Tribunal member has not looked into the facts that the Indian authorities have systematically persecuted the Sikhs, and this incidents are very common, even today. RRT is wrong to say I was provided in his state protection. RRT has failed to realise that there is state terrorism in India.
I am not able to identify in these criticisms grounds of jurisdictional error applicable to the Tribunal's reasoning. To the extent that the factual propositions made in them were relevant to the matter, I am not persuaded that they were not taken into account by the Tribunal.
An amended application filed on 7 December 2004 has four grounds:
1)The Tribunal member has rejected my application because I was confused and I claimed that Bhajan Lal was the INC candidate from Hissar. The Tribunal member writes that according to independent information Bhajan Lal was the candidate from Adam Pur.
The Tribunal member did not realize that Adam Pur fall under the District Hissar and I am not wrong in saying this.
2)The Tribunal member speculates and only presumes that I shall not be harmed in any other part of India when it states in my decision that, “The Tribunal rejects these claims because it is implausible in the Tribunal’s view, given that the applicant is not around and Chautala and the INLD have much more pressing concerned such as the forthcoming Haryana state elections, the Chautala or anyone else, including the applicant’s attackers in October 2003 has retained any interest in the applicant such that they will search the country for him to have him killed, including to silence him about the attack if the INC comes into power in Haryana.
3)The Tribunal failed to consider that I was systematically threatened and beaten by the members of other groups and I was not protected by the authorities as the members of authorities always support the members of ruling party.
4)The Tribunal member’s reasoning is irrational and illogical.
Ground 1 refers to a passage in the Tribunal's reasoning where it suggested that the applicant's responses about successful candidates in the 2000 state election in Haryana and the 2004 National Election were confused or incorrect. However, the Tribunal did not give effect adversely to the applicant in relation to these matters, since they are preceded by the statement: “the Tribunal is prepared to accept these claims” referring to his claims about political involvement. .Thus, even if the Tribunal made the factual error that it has referred to, it was entirely immaterial to both the factual and legal reasoning of the Tribunal. No jurisdictional error arises from this criticism.
Ground 2 identifies a sentence in the reasons given by the Tribunal for considering that the applicant could reasonably relocate elsewhere in India. It is difficult to see the ground as raising any jurisdictional error, and in my opinion the applicant’s criticism that the Tribunal "speculates and only presumes" amounts to no more than a disagreement with a factual assessment, which in my opinion was open to the Tribunal.
In relation to ground 3, I do not accept that there was any claim made by the applicant which was not adequately addressed by the Tribunal in its reasons, and I consider that the Tribunal's conclusion that there would be adequate state protection available to the applicant was open to it. In any event, the Tribunal's decision was also supported by the alternative finding in relation to relocation.
I do not accept the contention in ground 4 that the Tribunal member's reasoning was irrational or illogical. It has no substance which I can discern.
The applicant filed a written submission shortly before today's hearing which consists of a repetition of his factual claims, with a concluding contention: “That the Tribunal failed to take into consideration of all these facts”. However, as I have indicated, I do not accept that the factual claims which were made to the Tribunal were not given consideration by it before it arrived at its conclusions.
The applicant appeared at the hearing today, and made a new claim to the effect that the Tribunal had not allowed him to provide documents corroborating his claims, in particular, documents from the hospital and doctors. This contention had not been made in any previous document filed by the applicant in the Court, and is not supported by a transcript nor any evidence, although the applicant had been directed that affidavits and a transcript would need to be filed if necessary. There is therefore insufficient foundation for any contention that there was unfairness in the Tribunal's proceedings.
In any event, I note that the applicant did not fail before the Tribunal due to the absence of corroborative documents, since the Tribunal gave him the benefit of the doubt in relation to his history. Essentially, its reasoning was dependent upon its assessment of his claimed history in relation to issues of availability of adequate state protection and the option of reasonable relocation.
The applicant had no other points to make to me, other than saying that he felt his life was at risk if he returned to India.
For the above reasons, I have not been able to identify jurisdictional error affecting the Tribunal's decision, and the decision is therefore a privative clause decision within s.474(1) of the Migration Act. I must dismiss the application.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 19 December 2005