SZFDV v Minister for Immigration

[2005] FMCA 908

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDV v MINISTER FOR IMMIGRATION [2005] FMCA 908

MIGRATION – Visa ­ protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant from Tamil Nadu in India – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Randhawa v MILGEA (1994) 52 FCR 437

Applicant: SZFDV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3535 of 2004

Judgment of: Scarlett FM

Hearing date: 16 June 2005

Date of Last Submission: 16 June 2005

Delivered at: Sydney

Delivered on: 16 June 2005

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Mr Braham

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $3,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3535 of 2004

SZFDV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 18 October 2004.  The Tribunal handed down its decision on 10 November 2004.  The Tribunal affirmed the decision of a delegate of the minister not to grant a protection visa. 

2. The applicant is a citizen of India.  He arrived in Australia on

   
   

   16 May 2004.  He lodged an application for a protection visa on 3 June which a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused on 11 June.  The applicant then applied to the Refugee Review Tribunal.  That application was filed on

   
   

   2 July 2004.  The Tribunal wrote to the applicant on 8 September 2004.  The Tribunal told the applicant that it had considered the material that it had in relation to his application, but it was not able to make a decision which would be favourable to him just based on that information.  The Tribunal asked the applicant to attend a hearing on Wednesday, 13 October 2004.

3. The applicant attended that hearing.  He was not represented, but he had the assistance of an interpreter.  The applicant's case before the Tribunal was that he comes from Tamil Nadu in India.  He and his father and his whole family support the Communist Party.  His brother was working as a member of the Communist Party.  This aroused the opposition of two other parties, the DMK and the AIADMK.  Unfortunately, some people killed the applicant's brother.  He was murdered when he was stabbed in a riot.  The police have conducted some investigations but apparently no-one has been brought to trial over this offence. 

4. The applicant himself has been involved in trade union activities at the spinning mill at which he worked in India.  The management of that mill are people that support one of the other parties.  The applicant became unpopular with the owner and the management of the mill because of his involvement in trade union work.  He claims that he has been singled out for harassment and violent behaviour by people. 

   
   

   In many cases he is not sure whether it is from the mill owners and hangers on or from the DMK political party.  The applicant was asked by the Tribunal about whether he could relocate to the State of Kerala.  The Tribunal member told him that the Tribunal would need to be satisfied that it was reasonable in all the circumstances to expect him to move to Kerala. 

5. The Tribunal member told the applicant that he had looked at country information before the hearing which said that both Kerala and the State of Andhra Pradesh have relatively large Tamil-speaking communities.  The Tribunal member also put to the applicant that the Communist Party had a significant presence in Kerala.  The applicant had said that he would have difficulty relocating because he speaks Tamil and is not very fluent in other languages.  He also said that he did not know anyone in Kerala and had no contacts in that state.  He is currently living in Australia and wishes to remain living in Australia. 

   
   

   It would appear that Australia is a very different country from one of the neighbouring states in India. 

6. The Tribunal was satisfied that if the applicant relocated from Tamil Nadu to Kerala he would not have a well-founded fear of persecution for a convention reason.  The Tribunal was not satisfied that the applicant's parents would continue to be questioned about his whereabouts if the applicant left Tamil Nadu but resided in nearby Kerala.  The Tribunal member was satisfied that the applicant could relocate within India and that it would be reasonable for him to do so.  The Tribunal indicated that information about neighbouring states had been made available to the Tribunal before the hearing and the Tribunal asked the applicant to comment on how reasonable it would be to expect him to relocate within India.

7. I am not satisfied that the applicant's claim that he was not fairly dealt with as far as relocation is concerned can be made out.  It seems to me that the Tribunal has considered the law as it is set out in Randhawa v MILGEA (1994) 52 FCR 437. It is also noteworthy that the Tribunal considered whether the harm which the applicant complained about related to opposition from owners of the mill at which he worked at Tamil Nadu. Quite clearly, if the applicant had been subject to bad behaviour or persecution by his former employers, this is not a convention reason for having a well-founded fear.

8. The applicant gave eight grounds in his amended application.  He told the court that the amended application had been prepared after a friend took all his documentation and went to another person who prepared the material.  The applicant is of the view that the review by the court involves a further examination of the facts.  What he wishes to do is to submit further documentation either to this court or to the Refugee Review Tribunal.  It is not of course the function of this court to re‑examine the facts.  The task of fact-finding is a task of the decision‑maker. 

9. Looking at the applicant's eight grounds for review I note that the amended application claims that the reasoning adopted by the Tribunal member was illogical and misapplied so that the factual result was perverse.  This does not appear to me to be the case.  The reality is that the applicant's case whilst it does indicate harm to him and to the applicant's late brother by rowdies and other people, but it does not show that any of this harm is for a convention reason.  There is ample evidence to show that any threat of harm would come from thugs employed by management at the mill at which the applicant worked or from thugs of another political party.  There is no convention reason contained in that scenario.

10. The amended application also claims that the Tribunal member did not give proper consideration to the internal flight principle relating to whether the applicant could reasonably relocate to another part of India.  In my view, the Tribunal clearly considered this situation and set out a concise impression of the operation of the law as set out in Randhawa's (supra) case in its reasoning in the third paragraph at page 80 of the court book.  The applicant says that at the hearing he was denied the opportunity to explain fully why it was that he believed that the harm that he fears arose as a result of selective harassment and his imputed trade union activities.  It is quite clear that the applicant attended the hearing and was given the opportunity to put his case to the Tribunal.  In any event, harm arising as a result of selective harassment and his imputed trade union activities does not constitute a convention reason. 

11. The applicant's third ground is that the Tribunal failed to take a relevant consideration into account, namely constant harassment from the owners of the mill because of his trade union activities.  This is a restatement of an earlier ground and was well and truly covered by the Tribunal at page 79 of the court book. 

12. The applicant claims that the tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the applicant before the hearing nor put to the applicant during the hearing.  The Tribunal decision does not show that either of those situations existed.  The Tribunal decision shows that the Tribunal member obtained information before the hearing and studied it to prepare for the hearing.  Having obtained that information, the Tribunal member then put it to the applicant at the hearing and sought his comments about it.  Accordingly, that ground must fail.

13. The next ground of the amended application says this:

    The Tribunal misapplied the test, or alternatively, misinformed the applicant about the test. 

14. Presumably, the application is either talking about the test of whether or not the applicant has a well-founded fear of persecution for a convention reason or whether if the applicant did have such a well‑founded fear he could reasonably and safely relocate within India.  It is clear to me from the decision that the Tribunal member applied each test appropriately and did not misinform the applicant about either one of them. 

15. The amended application claims that the Tribunal member's reasoning was either irrational or so illogical as to indicate a failure to perform the review function at all.  Having read the decision thoroughly, my view is that the reasoning is neither irrational nor illogical.  It appears to me to be a rational appreciation of the available evidence and a logical finding arising from that appreciation. 

16. The amended application claims that the Tribunal member failed to give proper and adequate reasons for his decision.  In my view, the Tribunal member's reasons were proper and adequate and were supported by the evidence.  The amended application says that the Tribunal erred in failing to consider all claims and issues put forward by the applicant.  There is no evidence before me of any claim or issue put forward by the applicant that was not considered by the Tribunal.  The fact situation alone was, to my mind, sufficient to show that taking the applicant's case at its highest the harm which he or his family had suffered in the past or fear in the future arose either from criminal activity or possibly, as in the case of the applicant's murdered brother, from internal faction struggles within the Communist Party.  The evidence never came near to showing any convention reason for the applicant's fear of harm.

17. There is no reviewable error.  The application is dismissed. 

18. The proceedings have been brought on relatively speedily.  The application for review was first before the court on 17 December 2004.  The application was listed for final hearing today.  In the meantime the applicant was given the opportunity to obtain legal advice at no expense to himself.  The court file shows that he obtained legal advice from Mr Nair, barrister of Selbourne Chambers, Sydney.  The application was heard today and the applicant was unsuccessful.  He has told the court that when he obtained advice from a barrister the barrister had told him that he would be unable to win the case. 

    
    

    The advice was clearly correct.

19. The applicant did not withdraw the proceedings, but continued the case and indeed filed an amended application.  The case duly went on and the barrister who gave him the advice was proved to be correct.  To my mind, this is a clear case for an order for costs.  On the information which I am now given it appears that the applicant was in fact advised that he could not win and yet he persisted.  It is not unknown in these circumstances for a court to make an order for costs on an indemnity basis as this is one of the reasons given by the Full Court in Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225; 118 ALR 248 as a reason for making an order for costs on an indemnity basis rather than costs on a party-party basis.

20. The respondent minister is seeking costs only on party-party basis in what seems to me to be a modest sum of $3,850.00. The sum is well within the range prescribed by the Federal Magistrates Court Rules, particularly considering that the costs involved briefing counsel.

    
    

    To my mind, the minister can hardly be said to be adopting a rapacious or unreasonable attitude as far as costs are concerned.  I am not going to award costs on an indemnity basis even though the circumstances would appear to warrant such an award, but I am satisfied that the amount of $3,850.00 as a lump sum is well and truly justified. 

21. The applicant is to pay the respondent's costs fixed in the sum of $3,850.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  27 June 2005