SZEMK v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 317

FEDERAL COURT OF AUSTRALIA

SZEMK v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 317

SZEMK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2530 OF 2005

STONE J
28 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2530 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEMK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2530 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEMK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	28 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of India, arrived in Australia in January 2004 and applied for a protection visa on 29 January 2004.  He claimed to fear harm from political opponents because of his involvement with his uncle’s political party the Indian National Congress Party (‘INCP’).  The appellant claims that he was involved in election campaigning with his uncle and recruiting young men to the INCP and that he was a leader of the ‘youth congress’.  The appellant claims that in October 2003 his uncle’s political opponents beat him up and abducted him, threatened to kill the appellant’s family and threatened to attack the appellant again if he continued to recruit young men for politics.  The police agreed to investigate but after two months indicated that they could not find the perpetrators, and could not do much more to assist because of the lack of information provided by the appellant. 

2. The appellant also claimed that following a rally in December of 2003 he was attacked in a juice shop.  The police attended the scene of the attack and gave the appellant a lift home.  Further details of the appellant’s claims can be found in the decision of Federal Magistrate SZEMK v Minister for Immigration [2005] FMCA 1860.

   The Tribunal’s Decision

3. With some reservations, the Tribunal accepted the applicant’s evidence in relation to his involvement in politics and his evidence regarding the two incidents of violent conduct I have described above.  However, the Tribunal did not accept that, even by his own account, the appellant was denied adequate state protection.  The Tribunal found that adequate state protection would be available to the appellant upon his return to India and would not be denied for a Convention reason.

4. In addition, the Tribunal found that if the appellant did fear harm upon his return to India, the threats to the appellant were very localised.  The Tribunal found that as a single, bilingual and educated man the appellant would be more than capable of relocating within India in order to avoid further harm.  The Tribunal did not accept as plausible the appellant’s claims that relocation would not be sufficient to protect him or his family from the threat of violence from underworld figures or political opponents.

5. Finally the Tribunal rejected the appellant’s claim, made in his application for a protection visa but not in his written or oral evidence before the Tribunal, that he feared persecution because of his race. 

   The Federal Magistrate’s decision

6. The Federal Magistrate was unable to find any jurisdictional error in the procedures or reasoning of the Tribunal.  Before the Federal Magistrate the appellant raised four grounds of appeal:

   1.   the Tribunal erred in finding that the appellant’s responses to questions about the 2000 state election and the 2004 national election were uninformed;

   2.   the Tribunal erred in finding that the appellant could successfully relocate in India;

   3.   the Tribunal erred in failing to find that the appellant was systematically threatened and beaten by members of other groups and was not protected by the authorities as the relevant authorities only protected members of the ruling party;

   4.   the Tribunal’s reasoning was irrational and illogical.

7. The Federal Magistrate found that if the Tribunal made an error in relation to its assessment as to the appellant’s knowledge of local politics, it was not a jurisdictional error.  Any such error was immaterial to the factual and legal reasoning of the Tribunal, since despite its reservations the Tribunal had accepted that the appellant was active in the INCP.

8. In relation to grounds two and three, the Federal Magistrate found that the Tribunal’s findings in relation to relocation and the availability of state protection were open to it and did not raise any jurisdictional error.

9. Finally, the Federal Magistrate found that the allegation in the fourth ground of appeal was unsubstantiated. 

10. The Federal Magistrate dismissed two further claims made on behalf of the appellant in written and oral submissions.  The first was that the Tribunal failed to take into consideration all of the facts before it.  As described above, the Federal Magistrate did not accept that the factual claims made to the Tribunal were not considered before it arrived at its conclusions.  The second claim was that the Tribunal had not allowed the appellant to provide documents corroborating his claims.  The Federal Magistrate found that there was insufficient foundation for this allegation and that in any event the Tribunal’s decision did not rely on the absence of corroborative documents.

    This appeal

11. The appellant’s notice of appeal filed on 19 December 2005 is difficult to interpret.  It combines background narrative, submissions and assertions of legal error without distinction.  As far as I can discern, the grounds of appeal it raises may be summarised as follows:

    1.   the Federal Magistrate erred in deciding that the appellant did not have a real chance of being persecuted in India because of his political opinion;

    2.   the Tribunal erred in finding that the appellant did not have cause to fear persecution at the hands of his political opponents;

    3.   the Tribunal erred in finding that the appellant had access to adequate state protection in India, and would have access to adequate state protection upon his return to India.

12. It would seem that all of these grounds of appeal involve an attempt to obtain in this Court a merits review of the Tribunal’s decision.  It is well established that this Court does not have the jurisdiction to conduct a review of this nature and accordingly all of the grounds of appeal claimed must fail.  In any event, in relation to grounds two and three listed above, I have read the reasons of the Tribunal and agree with the learned Federal Magistrate that the Tribunal’s findings were open to it based on a consideration of all of the evidence before the Tribunal. 

13. I agree with the learned Federal Magistrate that the Tribunal correctly identified and applied the ‘real chance’ of persecution test.  Although the Tribunal’s description of the appellant’s fear of being ‘finished off’ by his abductors as ‘speculative’ might be regarded as ambiguous, I agree that read in context, the Tribunal can be seen to be indicating that the appellant’s fear was too remote to be considered a real chance. 

14. In any event the Tribunal’s finding that the appellant could avail himself of adequate state protection should he be subjected to mistreatment is, independent of his subjective fear, a sufficient basis on which to find that his fear was not well founded.  Again this was a finding that, on the evidence before the Tribunal, it was entitled to make.

15. Therefore, in my opinion, the Federal Magistrate was correct in finding that the Tribunal’s decision did not display any jurisdictional error and accordingly the appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             29 March 2006

The appellant appeared in person
Counsel for the First Respondent:	Ms T Wong
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	28 March 2006
Date of Judgment:	28 March 2006