SZEQU v Minister for Immigration - [2005] FMCA 1654

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQU v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1654

MIGRATION – RRT – Indian businessman persecuted by employees in wages dispute – Tribunal found harm not Convention-related – no error found.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZEQU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3265 of 2004

Judgment of:

Smith FM

Hearing date:

2 November 2005

Delivered at:

Sydney

Delivered on:

2 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms Adele Alex

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3265 of 2004

SZEQU

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 15 September 2004 and handed down on 12 October 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The Court has powers under s.39B of the Judiciary Act 1903 (Cth), but these are subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia.
The present applicant arrived in Australia on a three-month temporary business visa in November 2003. He applied for a protection visa on 22 December 2003, assisted by a solicitor, Adrian Joel and Company.
The applicant's statements in his visa application and a covering letter from his solicitor claimed that he had been a small business owner running a furniture shop in Kerala State, South India. He said:
My business was close down after the attack of the trade union people, and I was physically abused and assaulted. The members of trade union who are supported by the ruling party had given false complaints against me in the police station, and also smashed my home where I was residing. The trade union people who are in different political parties joined together to get me in their custody and kill me. They have influenced the local police officials to capture me and put me in jail. In these crucial (?) situation, there was no other way than escaping to some other country where my life is safe.
A delegate refused the application on 5 February 2004, and the applicant appealed to the Refugee Review Tribunal, still assisted by his solicitor.
The applicant gave much more detail of his claimed history in the course of responding to a request for information made by the Tribunal, and at a hearing which he attended on 21 May 2004. In its statement of reasons the Tribunal, in my opinion, correctly summarised the effect of his claims:
The applicant claims to be a former small businessman who will be persecuted by his four former employees, their union, the political parties to which the unions are affiliated, the RSS, the police, aristocrats, landlords and descendents of a royal clan. He claims that he will be harmed for reasons of political opinion, membership of a particular social group, his father’s background and his parents’ intermarriage.
The Tribunal recorded the details about these matters which had been provided to it by the applicant, in particular concerning the incidents which led to his departure from India in 2003. He identified four employees who had been employed in his furniture business. He told the Tribunal that his industrial problems started towards the end of March 2003, when his employees sought wage and bonus increases. After he told them that he could not pay immediately:
A meeting was held on 9 April 2003, and the union leaders demand that he sign a 'bond' against his property so that they could sell part of his property, but he rejected this. On 21 April 2003, the employees went on a hunger strike and sat in front of his shop shouting slogans against him.
The police then arrived, and become involved in the dispute. Later, the employees “smashed his shop” after he failed to pay them the whole of an amount which they demanded. His requests for help from the police were not responded to satisfactorily, and in September 2003 the employees with a union leader attended at his house where he was “verbally and physically abused”. His complaint to the police was taken, but a false complaint was also made against him by his former employees, and he feared that an arrest warrant would be issued against him. He therefore left India.
The applicant identified the political parties who he claimed were behind the actions of the employees, and described his family background which he also claimed had a part in motivating the employees’ actions.
The Tribunal gave a detailed and apparently careful description of its questioning of the applicant at the hearing concerning his claims. A transcript of the hearing is not in evidence before me, and I have no reason not to accept the Tribunal's description. It is clear that the Tribunal put to the applicant its concerns about the explanations which he gave for the problems he encountered in 2003, insofar as these sought to identify Convention reasons for them.
In its reasons, the Tribunal set out country information concerning the conduct of industrial relations in India and Kerala, and the political position in Kerala and elsewhere in India.
Under the heading: "Findings and Reasons", the Tribunal accepted that the applicant was a national of India. In effect, it also accepted his account of events in 2003, but did not accept the Convention reasons which he suggested had motivated the actions of his former employees. It said:
The Tribunal finds that the harm the applicant has been subjected to in the past by his former employees and their trade unions was not for reasons of political opinion or any other Convention reason.
It then gave its reasons, which essentially were based upon the Tribunal's assessment of “the plausibility” of aspects of the applicant's claims, in particular the fact that on his own history he had not encountered problems in the years leading up to 2003, and his problems had then commenced and continued in the context only of a wages dispute. It said:
The Tribunal finds that the reason the employees made the wage/bonus demands was financial gain, and the reason the unions were involved was to support their members, and neither his employees nor their unions were motivated by any of the convention grounds.
The Tribunal is prepared to accept that the applicant was harmed and his shop looted and damaged. It is plausible that the protracted wage/bonus dispute could have escalated into such violence. However, as the Tribunal has found that the wage/bonus demands were not made for any Convention reason, it does not accept that any violence which may have been committed by the employees or their unions in the course of the dispute was Convention related either. It was only after the applicant failed to meet the commitment he had made to his workers that violence erupted. Thus, the Tribunal finds that the violence occurred in retaliation for the applicant’s failure to meet the promises he made to his employees and not for reasons of political opinion or any other Convention ground.
In relation to the claim that political parties had been involved in the dispute, the Tribunal said:
When the applicant was asked at the hearing to explain why the political parties would become involved in a small localised wage dispute such as his, his responses were confused and hard to follow . . . he gave the Tribunal the impression that he was simply trying to concoct an explanation.
…
the Tribunal finds that the political parties named by the applicant were not involved in any way in the wage/bonus dispute, and the applicant invented the claim in an attempt to give a political dimension to the wage/bonus dispute.
The Tribunal did not accept that any failure by the police to protect the applicant was because of pressure from a political party, nor for any Convention related reason.
The Tribunal addressed the applicant's claim that “local aristocrats, landlords and royal descendents” had attempted to encourage the applicant's employees and their unions in the wage/bonus dispute, and did not find this plausible. The applicant had sought to give substance to that claim by referring to his family background, in which his father had fled from the Punjab in 1947 during the partition, and had come to Kerala and married a local woman who “belonged to a landlord family descendent from a Royal clan”. The applicant claimed that there had been incidents which happened to the family in the 1970s and 1980s, which showed improper treatment due to ethnic or caste opposition to this marriage. The Tribunal said:
Whatever disapproval may have existed or continues to exist in relation to his father's background or his parent's inter-marriage, the Tribunal finds that having only ever been seriously harmed once in 30 years, there is not a real chance that local aristocrats, landlords and royal descendants would persecute the applicant in the reasonably foreseeable future.
The Tribunal then addressed the applicant's claim that, as a result of his parents' marriage and his business affairs, he feared persecution anywhere in India from members of RSS, which the Tribunal says was a “Hindu supremacist umbrella organisation”. The Tribunal found this claim “to be a fabrication”. It found: “the RSS has no interest in the applicant, nor does it wish to harm him as he claims”.
Finally, the Tribunal addressed the applicant's position in relation to his caste or membership of a particular social group. However, it is said that the applicant had not claimed to fear harm for reason of his caste, except indirectly in relation to the claims about his parents, which it had dealt with. It also noted a claim by the applicant's solicitor that the applicant belonged to a particular social group of small businessmen. The Tribunal said:
However, neither the applicant nor his adviser have provided any evidence or information about those groups or how they come within the meaning of a particular social group as defined by the Australian Courts.
It found that neither of the claimed groups “are a particular social group”.
The Tribunal concluded that the applicant did not have a well founded fear of persecution in India for any Convention reason.
I have carefully read the Tribunal's decision, and in my opinion it has dealt with all the claims made by the applicant in a manner which was open to it on the evidence, and I am unable to identify any jurisdictional error affecting its decision.
The applicant's application filed on 5 November 2004 did not raise a ground of jurisdictional error, but argued with the merits of the Tribunal's conclusion. It said:
I feel that the Tribunal did not consider the real facts and incidents mentioned in the statutory declaration. What I have stated in my statutory declaration is that there is real threats to my life in India.
However, it is clear that the Tribunal was fully alive to all parts of the applicant's statutory declaration, and accepted significant elements in the applicant's claimed history. Where the applicant failed to persuade the Tribunal was in relation the Convention reasons which he sought to ascribe to the actions of his former employees. In my opinion its assessment of this was open to it.
At today's hearing, the applicant's oral submissions maintained that he would encounter persecution if he returned to India. I sought to draw his attention to the fact that the Tribunal had not rejected the possibility that he would encounter harm back in India if he returned, but that its reason for affirming the delegate's decision was that it was not satisfied that this fear was well founded upon Convention reasons.
The applicant filed an amended application on 5 November, 2004, which he tells me was prepared by somebody who has assisted him. I sought to obtain further explanation for some parts of it, but the applicant was unable to address it. It is unnecessary for me to recite the whole of it. I consider that the arguments contained in paragraphs 2, 5, 6, 7, 8 and 9 do no more than reaffirm the applicant's claims in relation to his fear of persecution, and as to the causes of it. As I have indicated above, I consider those claims have been addressed by the Tribunal according to law. It is no part of my function to reconsider the assessment made by the Tribunal.
Paragraphs 1 and 4 of the amended application claim:
The Tribunal has failed to analyse the matter with an open mind, and has approached the applicant's problem in a closed and predetermined state of mind.
This contention has not been elaborated by the applicant in any written or oral submission. On my reading of the material before me, there is no basis for the contention of actual or apprehended bias.
Paragraphs 3 and 10 of the amended application claim that the Tribunal did not:
Take time . . . to study the applicant's statutory declaration carefully.
However, in my opinion the Tribunal has carefully considered the applicant's evidence, but has not accepted the links which the applicant sought to establish for his difficulties in 2003.
Considering all the matters raised by the applicant, and reading the material carefully myself, I have been unable to identify jurisdictional error affecting the Tribunal's decision. It therefore is a privative clause decision for which relief is barred under s.474(1) of the Migration Act and I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 15 November 2005