SZEZW v Minister for Immigration - [2005] FMCA 1184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEZW v MINISTER FOR IMMIGRATION

[2005] FMCA 1184

MIGRATION – Review of decision by Refugee Review Tribunal – applicant claims persecution in India from police and terrorist group – applicant claims persecution as part of a particular social group, namely, Sikhs in India – relocation considered.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

Applicant:

SZEZW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2921 of 2004

Judgment of:

Emmett FM

Hearing date:

1 August 2005

Date of Last Submission:

1 August 2005

Delivered at:

Sydney

Delivered on:

22 August 2005

REPRESENTATION

The Applicant appearing on behalf of himself

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms B. Mendelsohn, Blake Dawson Waldron

ORDERS

The Amended Application filed 12 January 2005 is dismissed with costs.
That the Applicant pay the costs of the Respondent in the amount of $3500.
That the costs in accordance with Order 2 are to be paid within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2921 of 2004

SZEZW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection (class XA) visa to the Applicant.
The Applicant claims to be a citizen of India. The Applicant claims to have formerly resided in New Delhi in India.
The Applicant arrived in Australia on 19 December 2003.
On 15 January 2004 the Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 23 March 2004 a delegate of the Minister refused to grant a protection visa on the basis that the delegate was not satisfied the Applicant had a well founded fear of persecution within the meaning of the Convention and was, therefore, not a person to whom Australia owed protection obligations.
On 17 April 2004 the Applicant applied to the Tribunal for review of the decision of the Minister. On 9 August 2004 the Tribunal affirmed the decision of the delegate of the Minister.
On 23 September 2004 the Applicant filed an Application in this court seeking review of the Tribunal decision.
On 12 January 2005 the Applicant filed an Amended Application claiming relief on the following grounds:
“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.
Particulars:
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group and I am sihk in India. I will be persecute if I return back to India because, a false case against me.
The Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
I refer RD page 61 paragraph 2 of the “FINDINGS AND REASON”. The honourable Tribunal accept my claims. Only because of relocation ground the tribunal found that I not a refugee. As a Sikh identity, I do not relocate ANY WHERE INDIA.
I will provide more details to support my judicial review application in my outline of submission.
Particulars:
I repeat the particulars to grounds (sic)
I am unrepresented, I am still waiting to receive advice advise from pilot scheme barrister.”
In relation to the last comment, I note that the Applicant informed this Court at the hearing that he had consulted with a panel adviser over the telephone.

Legislative Framework

Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Tribunal had before it the Department’s file, including the protection visa application together with the Applicant’s statement dated 15 January 2004 in support of that application and the delegate’s decision record.
The Applicant attended a hearing before the Tribunal on 5 August 2004 and gave oral evidence with the benefit of an interpreter.
The Applicant made the following claims:
a)That in January 2003 he owned and ran a motel.
b)That on 22 January 2003 he offered to drive in his car 3 guests of his motel into the city.
c)That his car was stopped at a police checkpoint and that one of the guests told him to continue driving without stopping. The Applicant claimed that he did stop his car, got out and attempted to bribe a police officer to allow them to continue. The police officer refused and undertook a search through the car, whereupon the Applicant claims that the police found “explosion and some hand bombs guns etc”. The Applicant claimed that at that time one of the 3 guests tried to escape but the police officer fired bullets in his leg and caught him. The Applicant was then detained with the 3 guests by the police.
d)That the 3 guests were members of a terrorist group known as the Mohhammed Group, although the Applicant claimed he was unaware of that fact prior to the incident on 22 January 2003. The Applicant claimed that the Mohhammed Group were planning to carry out explosions on 26 January, being Republic Day.
e)That he was remanded for 1 month and, whilst under police arrest, he was beaten causing him to be hospitalised for about a month after his release from jail.
f)That after his release he received a call from an unknown man who told him that the other terrorists were in jail because the Applicant did not listen to them when they told the Applicant to continue to drive and not to stop at the police checkpoint. The Applicant claimed that the unknown man accused him of being a police informer. He claimed that the unknown man instructed him to make arrangements for the release of the terrorists in jail or he would be killed and his body sent to the police.
g)That, as a result of this incident, he sold his motel and his house and tried to move to another state. However, he was contacted by both the police and the terrorists. As a result, he decided to come to Australia and seek asylum.
h)That, if he returned to India, he would be persecuted either by the police or the terrorist group or possibly both.
In oral evidence before the Tribunal, the Applicant claimed that the police continued to be interested in him. He claimed that when he relocated within India the local police would ask him what he was doing there. He claimed that when the police listed his presence on their records he became concerned that he would be readily located by members of the Mohhammed Group.
The Applicant confirmed that he would have no particular problem relocating within India and agreed that he would be able to seek employment. His principal claim, however, both before the Tribunal and before this Court is that it is unsafe for him to relocate within India as he would be killed by either the police or members of the terrorist Mohhammed Group.
The Tribunal accepted the following:
a)That the Applicant is a Sikh and may have been arrested in late January 2003 at a police checkpoint because he was in the company of terrorists.
b)As a consequence the Applicant was detained and mistreated for almost a month and only released after his identity was established and the police holding him had been furnished with a bribe.
c)The Applicant underwent treatment in hospital for 1 month immediately following his release from detention in mid February 2003.
d)The Applicant remained in New Dehli for a further month until he sold his home and business.
e)The Applicant moved to various locations within India between March 2003 and December 2003.
In relation to the Applicant’s claims of fear of persecution by the police, the Tribunal made the following observations:
a)That the Applicant would not have been released in mid February 2003 if the police had any serious concerns or even suspicions that he sympathised, supported, or was otherwise connected to a terrorist group.
b)That the Applicant was not able to prevent his vehicle being searched on the 22 January 2003 at the police checkpoint by offering a bribe to the police.
c)That the police did not seek to question the Applicant or otherwise approach him or his family after his release in February 2003. Nor did they seek to question him in any other place in India.
d)That the Applicant is of no continuing interest to the police in India in respect of the incident on 22 January 2003.
Accordingly, the Tribunal found that the Applicant does not have a well founded fear of persecution by the police if he was to return to India.
In relation to the Applicant’s claim of fear of persecution by the terrorist group, the Tribunal made the following observations:
a)That if the Applicant’s home telephone number was able to be obtained by the unknown man who threatened him, those details must also have been known to other members of the terrorist group. Yet the Applicant remained in New Delhi for 2 months after his release in February 2003.
b)That none of the family members of the Applicant have been questioned, mistreated or approached by any person at all, let alone by any person claiming to represent the named terrorist group or the police.
The Tribunal was not satisfied that the terrorist group would be interested in targeting the Applicant and that in any event the Applicant could safely relocate within India. Such relocation, or opportunity to relocate, would address the remote chance that the terrorists may be able to obtain information about the Applicant’s whereabouts from corrupt police or other reason.
The Tribunal then considered whether it was reasonable in all the circumstances to expect the Applicant to relocate within India. The Tribunal had regard to the skills and experience that the Applicant has had, both in running a business and relocating and finding employment in Australia, even with a different language and culture. Further, the Applicant, himself, confirmed that he would have no particular problem relocating within India. The Applicant’s concern expressed to the Tribunal is of a subjective fear of being persecuted by members of the named terrorist group.
The Tribunal concluded that the Applicant’s subjective fear is not a well founded fear of persecution within the meaning of the Convention.

The proceeding before this Court

The Applicant appeared unrepresented at the hearing before this Court with the aid of a Punjabi interpreter.
In the hearing before this Court, I understand the Applicant’s grounds of complaint essentially to be distilled to the following 3 claims:
a)That he told the Tribunal that he was a Sikh and that the Tribunal failed to consider that fact as a reason for persecution.
b)That the Tribunal commented adversely on the fact the application for a protection visa was made 3 months after he entered into Australia.
c)That the Applicant is unable to relocate in India.

The Applicant’s claim (a) - That he told the Tribunal that he was a Sikh and that the Tribunal failed to consider that fact as a reason for persecution

A fair reading of the Applicant’s written evidence makes it abundantly clear that the Applicant’s concern of persecution is from the police or the terrorist group because of his connection with the incident on 22 January 2003. The Applicant did not claim before the Tribunal that he had any fear of persecution because he is a Sikh.
The Tribunal is not obliged to deal with unarticulated claims that are not sufficiently raised on the material before the Tribunal. The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited at paragraph 62 Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114:
“Proceedings before the tribunal are not adversarial: and the issues are not defined by the pleadings or analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
Further, there is nothing asserted in particulars by the Applicant that he would suffer persecution because he is a Sikh. In oral submissions before this Court, the Applicant referred to difficulties with Sikhs and Muslims living together. However, that was not at the heart of his claim before the Tribunal. Further, it is not at the heart of his complaint before this Court. As stated above, there was no claim before the Tribunal of fear of persecution arising out of the fact that the Applicant is a Sikh. Nor did the Applicant contend, before this Court, that there was material before the Tribunal that raised concerns about persecution of Sikhs for any Convention reason.
It is clear that all the Applicant’s evidence and submissions were addressed to his fear of retaliation from the terrorist group or the police, arising out of his involvement in the incident on 22 January 2003.
I am satisfied that there was no claim raised, either expressly or otherwise, on the material before the Tribunal that, because he is a Sikh, the Applicant had a well founded fear of persecution within the meaning of the Convention.
Accordingly, this ground is rejected.

Applicant’s claim (b) - That the Tribunal relied on the fact that the protection visa application was made 3 months after entering into Australia

While the Minister’s delegate may have had regard to the Applicant’s 3 month delay in making his protection visa application, there is nothing in the reasons of the Tribunal to suggest that it had regard to the Applicant’s delay in making his protection visa application as having any bearing on its decision.
Accordingly, this ground is rejected.

Applicant’s claim (c) - That the Applicant is unable to relocate in India

The Applicant claimed before this Court that he cannot relocate in India because of the number of problems in India, the different kinds of people and different religions and the difficulty in adapting. That is not a matter for this Court. Consideration of such matters would involve the Court in merits review.
In accordance with Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, the Tribunal considered whether it was reasonable in all the circumstances to expect the Applicant to relocate within India. The Tribunal had regard to, and considered, the Applicant’s evidence and submissions in relation to the difficulties asserted by the Applicant in such relocation. The Tribunal referred to the Applicant’s 22 years of education, his skills in running his own business, his relocation in India and settlement into finding employment in Australia, despite the language and cultural differences. The Tribunal concluded that it was reasonable in all the circumstances to expect the Applicant to relocate.
That was a finding open to the Tribunal on the facts before it. It is plain that the Tribunal understood the Applicant’s concern about relocation and appropriately considered the Applicant’s submissions on the issue.
Accordingly, this ground is rejected.

Other claims

In addition to the grounds dealt with above, the Applicant relied on his Amended Application filed 12 January 2005 and his written submissions dated 27 July 2005. In those documents the Applicant appeared to be making the following claims in respect of the Tribunal decision:
i)That the Tribunal demonstrated actual bias.
ii)That the Tribunal refused his application without any investigation.
iii)That the Tribunal did not consider his claims.
iv)That he was persecuted by the Indian authority because they did not protect his life.
v)That the Tribunal rejected his claims because his written evidence was inconsistent.
vi)That the Tribunal did not notify him of its concern about the inconsistencies in his evidence pursuant to s.424A of the Act.
vii)That the Tribunal decision is not based upon reasoning which provides a rational or logical foundation for the Tribunal’s belief that his persecution is not Convention based.
viii)That the Tribunal acted in bad faith, in that the Tribunal took into account irrelevant matters, did not take certain matters into consideration and did not make an honest attempt to come to the right decision.
ix)That the Tribunal did not observe the Act properly in making its decision.
In relation to grounds (i), (ii), (vii), (viii) and (ix) there are no further particulars provided by the Applicant in support of these claims. None are claims that are apparent from the decision of the Tribunal. Without any further particularity, I am satisfied that the mere claims by themselves do not disclose error on the part of the Tribunal.
Accordingly, each of these grounds is rejected.
In relation to claims (iii) and (iv), I am satisfied that each of the factual claims raised by the Applicant was considered and dealt with by the Tribunal. The Tribunal’s consideration of the Applicant’s factual claims is referred to above and I am satisfied that the findings made by the Tribunal were open to it on the material before it. In light of its findings the Tribunal concluded that the Applicant did not have a well founded fear of persecution for a Convention reason.
Accordingly, these grounds are rejected.
In relation to the Applicant’s claim (v) and (vi), there is nothing in the decision to conclude that the Tribunal in any way regarded any inconsistency in the written evidence of the Applicant as the reason or part of the reason for its decision.
Accordingly, this ground is rejected.

Conclusion

In the circumstances, I am satisfied that the Tribunal properly considered the factual claims made before it by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before this Court that is capable of satisfying the Court that the Tribunal’s decision is affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Accordingly, the Applicant’s Applications before this Court are dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 22 August 2005