SZFYC v Minister for Immigration
[2005] FMCA 1196
•17 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYC v MINISTER FOR IMMIGRATION | [2005] FMCA 1196 |
| MIGRATION – Review of decision of RRT – where no error is indicated on the decision. |
| Judiciary Act 1903, s.39B Migration Act 1958, s.417(1) Federal Magistrates Court Rules 2001 |
| Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 VAF v Minister for Immigration (2004) 206 ALR 471 |
| Applicant: | SZFYC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 712 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 17August 2005 |
| Date of Last Submission: | 17 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2005 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 712 of 2005
| SZFYC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 24 February 1996. On 22 March 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 May 1997 a delegate of the Minister refused to grant a protection visa and on 5 June 1997 the applicant sought review of that decision. The applicant attended a hearing before the Tribunal which determined on 4 August 1998 to affirm the decision not to grant a protection visa.
Following the decision of the Tribunal, the applicant joined the Muin and Lie class actions; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. His proceedings under those class actions were dismissed by Emmett J on 20 February 2004. On 21 March 2005 the applicant lodged an application in this Court pursuant to the Judiciary Act 1903 and he lodged an amended application in accordance with the orders of the Registrar on 24 May 2005.
The applicant's claim to hold a well-founded fear of persecution for a Convention reason is based upon some incidents which occurred to him commencing in June 1995. Up to that time he had been a non-political truck driver's assistant but on a date in that month and year he was stopped on the road by some Sikh militants and was required to provide them with food and money on pain of violence. Worse was to come, however. He told the Tribunal that eventually the police discovered the assistance he was giving to the militant group and he was arrested and detained. He was tortured and eventually agreed that he would act as an informant for the police. He found himself placed between what he describes as "two warring factions." He feared them both.
At the end of 1995 he left his home in Uttah Pradesh and sought the safety of the large city of New Delhi. There he met persons who assisted him to escape to Australia. He has been told that the police are looking for him and he fears to return. He does not believe he would be safe in another part of India.
The Tribunal expressed its reasons for not finding that the applicant was a person to whom Australia owed protection obligations based upon its reading of independent country information and a view which it took about the nature of the applicant's complaints. These matters are set out at [CB 75] where the Tribunal says:
The Tribunal finds that the applicant is being threatened by both parties for the purposes of extortion: by Sikh terrorists for food and money, and by the police for information. The Tribunal finds that such acts of attempted extortion are not based on the race, political opinion nor membership of a political social group, of the applicant, but rather on the fact that he was perceived to possess something desired by those extorting him. As was observed by Burchett J with regard to extortion for money:
“Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual” (Ram v MIEA & Anor (1995) 57 FCR 565 at 569).”
The Tribunal finds that the acts of extortion directed against the applicant were not for a Convention reason.
The independent information cited above indicates that Sikh activism had declined significantly by the time the applicant left for Australia raising doubts that the situation faced by the applicant might still pertain. However, should the applicant feel he was still in any danger, the option of relocating to some other area of India, such as New Delhi to where he relocated prior to leaving for Australia, is still open to him.
In the light of the independent information cited above on the decline in Sikh militancy and attendant police repression, the Tribunal does not accept as plausible his fear that an ordinary person such as himself faces in such places as New Delhi, or indeed anywhere in India, the fate of the assassinated former Chief Minister of the Punjab, Beant Singh.
Although, it might be possible to debate whether a finding that the extortion to which the applicant was subjected and which the Tribunal did not deny, had constituted an error of law or an error of fact in so far as it was classified as not a "Convention reason" it is not necessary for me to opine. This is because the Tribunal has indicated in what was described by the Federal Court in VAF v Minister for Immigration (2004) 206 ALR 471 as the integral part of its reason for decision the fact that the violence which existed in the Punjab had declined considerably even by the time the applicant had left India. For that reason the Tribunal considered that he was no longer a person who had a well-founded fear. Additionally, the Tribunal found that the applicant could relocate.
These findings by the Tribunal, based as they are upon independent country information that was not impugned by the applicant, do not have any of the hallmarks of jurisdictional error. In reality the applicant clearly failed to persuade the Tribunal that he fell within the Convention definition.
The amended application filed by the applicant is of little help in identifying any jurisdictional error. There is an unparticularised allegation that the decision involved an error of law involving correct interpretation of the applicable law within the meaning of s.417(1) of the Migration Act 1958. A further ground is that there was material provided to the Tribunal in support of each of the applicant's fears that the Tribunal had not rejected the evidence upon which the applicant relied. The first of these grounds is difficult to deal with in the absence of any particulars and the second appears to be seeking impermissible merits review.
Earlier today the applicant told me that he still had a fear of persecution if he returned because he would be killed and that was the reason he did not wish to return. He also told me that it was not easy to relocate within India, that people had homes and were expected to live in them.
Having considered the decision of the Tribunal, the submissions of the applicant and the helpful submissions of Mr Reilly, I am unable to see any grounds upon which I could hold that the Tribunal fell into jurisdictional error such that I would be required to hold that the decision was invalid and of no effect. I dismiss this application.
I order that the applicant pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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