SZFSP v Minister for Immigration

[2006] FMCA 1710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSP & MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1710

MIGRATION – Review of decision by Refugee Review Tribunal – in protection visa application, applicant claimed persecution due to involvement in Left Democratic Frontapplicant claimed persecution as a non-Muslim shopkeeper in Kerala, India – whether persecution was for a Convention reason – grounds in applicant’s amended application alleges Refugee Review Tribunal made errors in its factual findings.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1); 474; pt.8 div.2
Federal Magistrates Court Rules 2001

SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435

Applicant: SZFSP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG395 of 2005

Judgment of: Emmett FM

Hearing dates: 17 October 2006 & 14 November 2006

Date of Last Submission: 14 November 2006

Delivered at: Sydney

Delivered on: 14 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG395 of 2005

SZFSP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for a judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 January 2005 and handed down on 8 February 2005.

1.The Tribunal decision affirmed a decision of a delegate of the first respondent (“the Delegate”) dated 16 September 2005.

2.The Applicant lodged an application for a protection visa on 16 August 2004, having arrived in Australia on 9 August 2004, after legally departing Bombay on a passport issued in his own name and a Class TE Temporary Resident Visa issued on 27 July 2004.

3.The Applicant lodged a protection visa application, CD27 with the Department of Immigration and Multicultural Affairs on 16 August 2004. 

The Applicant’s Claims

4.The Applicant provided a statement in support of that application in which he claimed he was an active member of the Left Democratic Front (“the LDF”), being the opposing party in Kerala state where he lived.  The Applicant stated that members of the INC knew he was an active member of the LDF. 

1.The Applicant stated that, in September 2003, members of the Indian National Congress (“the INC”) came to his shop with their local leader demanding money as a donation for their convention.  The Applicant stated he was not present at that time, however, those who came to his shop physically abused his salesperson and partially damaged his shop.  The Applicant The Applicant stated that INC members knew he was an active member of the LDF and he said that, after seeing the damage that was done, he ran to the local police station and lodged a complaint about members of the INC.  The Applicant stated that on his return home he was attacked by the same people who had attacked his shop and was beaten, resulting in his hospitalisation.

5.The Applicant asserted that the police did not investigate his complaints due to a higher influence from the ruling partyINC. 

1. The Applicant stated that, in December 2003, members of the INC returned to his shop and verbally and physically abused him, smashed and looted his shop.  The Applicant stated he again informed the police, however, he did not receive any assistance from them, so he decided to take his own revenge.  The Applicant stated that, a week after this incident, the INC party members came to his home and sought to extort money from him.  The Applicant stated that the local leader of the INC party, who is also leader of the Muslim community, came back a week later and demanded money.  The Applicant stated he told them that he would arrange for payment of the money within a month, whereupon he was physically abused, his home smashed and attempts made to kill him with an iron bar.  The Applicant stated that, with the help of friends, he attacked the local INC party leader whom he regarded as the “master mind” behind his problems. 

   7.Following this attack, the Applicant arranged to go to Singapore for a month until his problems were over.  He stated that he received a message from a friend in Kerala after two weeks that the problems had been settled between the INC party and the LDF and he could return to Kerala.

   8.The Applicant stated that, upon his return, he was unable to restart his business due to financial problems. and that hHe said he was approached by the LDF to become an active member and attend the party meetings.  However, he stated that because of his past problems he told them he was not interested, as a result of which they became angry and informed the INC party members that he was no longer part of the responsibility of the LDF.

   1.The Applicant stated that a week after this incident, the INC party members came to his home and sought to extort him.  The Applicant stated that the local leader of the INC party who is also leader of the Muslim community came back a week later and demanded money.  The Applicant stated he told them that he would arrange for payment of the money within a month, whereupon he was physically abused, his home smashed and attempts made to kill him with an iron bar.

   9.The Applicant stated that he ran fromleft his home and escaped eventually to Madras.  I should note that the Applicant also claimed that following the incident in December 2003, the Applicant arranged with some friends to attack the local INC party leader whom he regarded as the mastermind behind his problems.  It was following this attack that the Applicant left for Singapore.

   10.On 16 September 2004, the a dDelegate of the first respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

   The Tribunal Proceeding

   11.On 7 October 2004, the Applicant lodged an application for review of the Delegate’s dDecision with the Refugee Review Tribunal.  In support of that application, the Applicant provided a statement in which he said:

   “I request the Refugee Review Tribunal to read my declaration attached to my petition for protection visa.”

   The statement otherwise made general statements reiterating his complaints in this protection visa application.

   12.The Applicant attended a hearing before the Tribunal on 14 December 2004 and, at which he gave oral evidence.  In his oral evidence, the Applicant stated that he was not an active member of the LDF, although he had supported them during election campaigns. , hHowever, he did not attend meetings or other LDF activities between elections.

   13.Before the Tribunal, the Applicant generally expanded on the claims that he had made in his written statement. 

   14.The Tribunal noted that it generally accepted the Applicant’s oral evidence, although it noted there were a number of differences between the written claims put forward in the protection visa application.

   15.The Tribunal accepted that, in late 2003, the Applicant and a number of other shop keepers in his district within the column experienced harassment from people who wanted the non-Muslim shopkeepers to move out. 

   16.The Tribunal found that the Applicant’s protests became personal when he and a group of friends attacked the INC ringleader who was the leader of the local branch of the INC.  He was also a leading figure in the local Muslim community. 

   17.The Tribunal noted that the INC included members of the Muslim league.  AThelthough it Tribunal noted found that  it should be assumed that actions taken by certain INC members in the Applicant’s district against non-Muslims arewere not typical of, or endorsed by, the organisation at a higher level, nor did such anti-non-Muslim conduct or reflected the views of the governing coalition because there may be local crossovers between the INC and Muslim league.

   18.

   The Tribunal also noted that the Applicant did not pursue his written claim of being abandoned by the LDF after his return from Singapore. 

   
   

   The Tribunal notesd that the Applicant made no claim that there was any animosity from the LDF towards him. 

   1.The Tribunal noted the Applicant

   ’s claim that he did not believe that the police were taking action against the INC/Muslim leader, although the Applicant had specifically given his name to the police. 

   
   

   The Tribunal observed that it the Tribunal could not know whether the police had failed to take action on purpose because of pressure from the INC or simply because there was insufficient evidence upon which to act.  In particular, the Tribunal noted that the Applicant was not present on the occasion when he alleged members of the INC as the ringleader and his colleagues first entered his shop and demanded money, so any of his allegations were second hand.

2. The Tribunal concluded that the fact that a complaint to the police did not lead to a the Applicant’s desired outcome was not proof that the State is not willing or able to protect its citizens.

   20.The Tribunal found that the antipathy between the Applicant and the INC leader is was personal, although may possibly may have been exacerbated by the fact that the Applicant and the INC leader were of different political views and different religions.  However, the Tribunal concluded that it was not satisfied that the harm the Applicant suffered is of the type orf severity that could be characterised as persecution, nor was it State sponsored or State tolerated.

   21.The Tribunal noted that the Applicant made no claims, and nor did the evidence suggest, that any of the harassment suffered by shopkeepers was of a scale of communal violence which would engage the attention of the city or State authorities.  The Tribunal noted found that the district level police to whom the shopkeepers complained passed the matter back to the local police and there was a series of low level harassment which became more heated in the case of the Applicant.

   22.The Tribunal noted found that it was unfortunate that the Applicant chose to move to Madras rather than another area of Kerala, because this meansin Kerala the Applicant had moved from a place where 96 per cent of the population spoke Malayalam like the Applicant, to a place whereas in Madras almost everyone spoke Tamil, which the Applicant did not speak.  The Tribunal rejected the Applicant's claims of having had to leave his friend's place in Madras because of persons whom the Applicant alleged were from the INC had followed him and contacted him Madras.

   23.The Tribunal found that if people had been sent to do him harm that it was implausible they would have simply left a message instructing him to go to a particular address. 

   The Applicant, in his oral claim before the Tribunal stated that, while he was staying at his friend’s house in Madras, a group of six men came to the door asking for him, but he was not there at the time and they left a message saying he was to go to a certain address. 

   
   

   The Applicant stated that when he got this message, he left his friend’s house and went elsewhere in Madras.  He stated that he assumed the people who sought him were those who had wished to harm him in Kerala or their associates.

   24.The Tribunal found it implausible that such persons would have simply left a message instructing the applicant to go to a particular address, one unknown to the recipient of the message, a stranger in town.  Because the Tribunal found those claims implausible, the Tribunal rejected the Applicant’s claims as to why he left his friend’s place in Madras.

   25.The Tribunal noted that the Applicant’s family had experienced no harm nor encountered anyone looking for the Applicant since they left their house in early February 2004 and noted that the Applicant’s wife had found employment as a teacher.  Those facts led the Tribunal to conclude that there was no general societal discrimination in the Kerala area towards people who share characteristics with the Applicant.

   26.The Tribunal found that, if there was any ongoing animosity towards the Applicant from the INC/Muslim leader, that it arose from personal reasons because the INC/Muslim leader was hospitalised as a result of an the attack organised and participated in by the Applicant and not for any Convention reasons.

   27.The Tribunal concluded that it was not satisfied that the Applicant would besuffered harmed harm of a type or severity that was persecution for a Convention reason in the past.  The Tribunal concluded that the chance that the Applicant will suffer in the reasonably foreseeable future is remote.  For those reasons, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution for Convention reasons and, accordingly, affirmed the decision under review.

   The proceeding before this Court

   1.On 14 February 2005, the Applicant filed an application for judicial review of that decision with this Court. 

   28.On 19 May 2005, the Applicant filed an amended application.  The Applicant’s application filed on 14 February 2005 discloses no ground capable of a review and simply states that the Tribunal had made an unfavourable decision and that what he had told the Tribunal was true.

   29.In his an amended application filed on 19 May 2005, the Applicant purported to rely on nine identified grounds.  The Applicant appeared before this Court unrepresented, but with the assistance of an interpreter.  The Applicant made no submissions in support of any of the individual grounds, other than to say that his life is in danger in Kerala and that the Tribunal did not consider the grounds of his application, that his country is very dangerous. 

   30.Ground 1 does not disclose any ground capable of review and for those reasons, to the extent it is relied upon as a ground of review, it is rejected.

   1.I will now deal with each of the grounds of review seriatim. 

   31.In Gground 2, the Applicant states that the Tribunal, having accepted that
   non-Muslims face a lot of problems, and should have accepted the contention of the Applicant. 

   32.There are no particulars attached to this ground and it is difficult to distil what it is that is the essence of the Applicant’s complaint other than disagreement with the ultimate findings and conclusions of the Tribunal. To the extent that Ground 2 does no more than disagree with such findings and conclusions, it is seeking merit review, which this Court cannot undertake. 

   33.Accordingly, Ground 2 is rejected.

   1.The Applicant appeared before this Court unrepresented, but with the assistance of an interpreter.  The Applicant made no submissions in support of any of the individual grounds, other than to say that his life is in danger in Kerala and that the Tribunal did not consider the grounds of his application, that his country is very dangerous. 

   1.As is apparent from these Reasons above, the Tribunal identified with particularity the claims made by the Applicant in his oral submissions and referred in full to the written claims made by the Applicant in support of his protection visa application.  I should say that the information provided by the Applicant in support of his protection visa application was information given to the Tribunal by the Applicant for the purposes of this review by reason of the Applicant's statement in support of his review application, where he requested the Refugee Review Tribunal to read his declaration attached to his protection visa application.

   1.In those circumstances, there is no obligation that arises under s.424A(1) of the Act (SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435). For those reasons, ground 2 is rejected.

   34.Ground 3 states that the Tribunal observed that the Applicant had lived in Kerala for 13 years and then asserted that the Applicant could not continue his work, though he had been there for many years and that that fact showed the intensity of the problems he faced and that the Tribunal failed to take account of those facts. 

   35.However, to the extent that this ground seeks to cavil with findings of fact made by the Tribunal, it is rejected.  In any event, it is misconceived to the extent that the Tribunal accepted that the Applicant had problems with his shop and that it may have been unfair to shopkeepers, who operated in one area for a long time, now to be made to feel unwelcome.

   36.Ground 4 states that the Tribunal had seen that the police did not take any action against  the culprithose who caused him damage and harmt and alleged that the Tribunal erred in substituting a new fact that the police did not have enough evidence to act.  The Applicant stated that the Tribunal went beyond its jurisdictional power and invented something knew to defeat the case of the Applicant. 

   37.However, this ground is misconceived.  As stated earlier in these reasons at paragraph 19, the Tribunal did not make a finding as to the reason why the police had failed to take action.  The Tribunal found that it could not know whether the police had failed to take action against those damaging the Applicant’s shop because of pressure from the INC or whether there was not enough evidence on which to act.  The Tribunal noted that the Applicant was not present at the time his shop was damaged.  That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it gave reasons.  The Tribunal found that the harm suffered by the Applicant arising out of the antipathy between the INC ring leader and the Applicant was not persecution for a Convention related reason.

   38.In the circumstances, gGround 4 is not made out.

   39.Ground 5 states that the Tribunal erred in finding that the fact that a complaint to the police did not lead to a the Applicant’s desired outcome is not proof that the State is not willing or able to protect its citizens and that the police is the State and if they do not act on a complaint, it clearly states the Applicant is not safe. 

   40.AgainThe Tribunal expressed its concerns about why the police may not have interfered based on the evidence and material before it.  As stated above in these reasons at paragraph 37, the Tribunal was not able to be satisfied about the reason why the police did not act on the applicant’s complaint about the damage to his shop.  The Tribunal concluded that an unsatisfied complaint by the applicant, in the circumstances of this case, was not sufficient proof that the State is not willing to protect the applicant.  That conclusion was available to the Tribunal on the evidence and before it, and for which it gave reasons.  Ground 5 otherwise appears, again, to cavil with the findings and conclusions of the Tribunal. 

   41.Accordingly, gGround 5 is rejected.

   42.Ground 6 states that the Tribunal committed an error in stating there was a series of low level harassments which became more heated in the case of the Applicant and a feeling that such more heating things is not harassment.  Again, this ground appears to be no more than cavilling with the factual findings made by the Tribunal.  Furthermore,In any event, the Tribunal concluded that any low level harassment suffered or any harassment suffered by the Applicant was not Convention related. 

   43.Accordingly, Gground 6 is rejected.

   44.Ground 7 states that the Tribunal was not correct to say that it was unfortunate that the Applicant chose Madras, and later Australia, rather than another area of Kerala and that the Tribunal was wrong to say that in Madras everyone speaks Tamil. 

   45.Ground 7 is essentially a disagreement with the findings of the Tribunal in relation to its consideration and evaluation of independent country information before it.  Authorities have made it clear that independent country information to which the Tribunal has regard is a matter for the Tribunal.  There is no error in the Tribunal proceeding to have regard to particular country information and to make findings in accordance with that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).  Moreover, there is no evidence before me to suggest that there was any other country information provided to the Tribunal by the Applicant which it failed to consider. 

   46.Accordingly, Ffor those reasons, gGround 7 is rejected.

   47.Ground 8 states that the Tribunal committed awas mistaken in saying finding that the ongoing animosity towards the Applicant on the part of the INC/Muslim ringleader was for personal reasons. 

   48.Again, this ground is no more than disagreement with the factual findings.  The finding made by the Tribunal to that effect was a finding that was open to it on the evidence and material before it and for which it provided reasons. 

   1.For that reason, ground 8 is rejected.

   49.The first respondent submitted that although the Tribunal accepted that the Applicant was targeted by non-Muslims, it did not amount to persecution for two reasons.  The Tribunal found there was no Convention nexus arising out of the damage and harm suffered by the applicant because the Tribunal found that the Applicant

   ’s problems with the INC were personal. 

   
   That finding was open to the Tribunal on the evidence and material before it because:

   i)the Applicant had stated that he was not an active member of the LDF and did not attend meetings;

   ii)the Tribunal had found that, although the local INC may have had Muslim members, it was not the view higher up in the party that only Muslim members could be members of the INC;

   iii)the Applicant’s family had experienced no persecution;

   iv)there was no societal discrimination;

   v)the Applicant’s difficulties with the INC ringleader were because of personal animosity after the Applicant organised and participated in an attack on the INC ring leader, resulting in hospitalisation of the ring leader.

   50.Accordingly, Ground 8 is rejected.

   1.Counsel for the first respondent also submitted that the Tribunal considered the issue of relocation and the reasons for the Applicant to relocate.  The Tribunal noted that the Applicant was a Hindu and that the Kerala state has a majority of Hindus and there are many areas within Kerala which are wholly or mostly Hindu and certainly areas that have not succumbed to, in the Tribunal's words, the blended religion and politics which have brought such a change in the Applicant's old neighbourhood.

   1.Counsel for the first respondent submitted that, in the circumstances, the decision of the Tribunal was not affected by jurisdictional error in circumstances where those findings referred to by counsel for the first respondent were open to it, on evidence and material before the Tribunal and for which it gave reasons. 

   Conclusion

   51.As is apparent from these Reasons above, the Tribunal identified with particularity the claims made by the Applicant in his oral submissions and referred in full to the written claims made by the Applicant in support of his protection visa application.  The information provided by the Applicant in support of his protection visa application was information given to the Tribunal by the Applicant for the purposes of this review by reason of the Applicant’s statement in support of his review application, where he requested the Refugee Review Tribunal to read his declaration attached to his protection visa application. In those circumstances, there is no obligation that arises under s.424A(1) of the Act (SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435).

   52.The Tribunal considered the Applicant’s claims and largely accepted the Applicant’s evidence.  However, ultimately, the Tribunal did not accept that any harm suffered by the Applicant was Convention related.  The Tribunal made clear its findings and conclusions and provided reasons for its conclusions arising out of the factual findings it made.  Those findings and conclusions were open to the Tribunal on the evidence and material before it.

   53.Accordingly, the decision of the Refugee Review Tribunal is not affected by jurisdictional error.  The Tribunal’s decision, is a privative Court decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

   54.The proceeding before this Court is dismissed.

   I certify that the preceding fifty-fourthree (534) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S. Tsang

   Date:  17 20 November 2006