SZFZA v Minister for Immigration
[2006] FMCA 1335
•6 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFZA v MINISTER FOR IMMIGRATION | [2006] FMCA 1335 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZFZA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG759 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 759 of 2005
| SZFZA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 March 2005 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in September 2004 and applied for a protection visa on 1 November 2004. The application was refused. He sought review by the Tribunal and attended a Tribunal hearing.
The applicant’s claims were set out in a statement accompanying the protection visa application. He claimed to be a Hindu and to have been interrogated by the police for information about an incident near his house in October 2002 in which a Hindu leader was killed by Muslims. He also claimed that Muslims threatened to kill him if he said anything about the murder. He claimed he relocated but Hindus discovered where he was living and threatened to kill him and his family if he did not provide information about the Muslims who committed the murder.
At the Tribunal hearing the applicant gave further information in support of his claims, in particular about the incident in which his neighbour, a prominent Hindu, was killed outside his house. He claimed that he was interviewed by the police and shown a list of Muslim men’s names and asked if any were involved but that he insisted he had not seen anything and could not help. He was urged by the secretary of the local BJP branch to be of assistance to the police. He claimed that he continued to be contacted by both Muslims threatening to damage or destroy his shops if he gave false witness and Hindus pressuring him to say that he had seen three accused Muslims at the scene.
The Tribunal recorded that in the Tribunal hearing the applicant was asked if police inquiries had progressed. He explained that two men had been charged but had not yet come to trial. When asked if he had been summoned to be a witness at the trial the Tribunal recorded that the applicant replied that he had not. The Tribunal put to him that it did not accept that he was still being targeted by the Muslims, as it was evident from his absence from the trial or from any list of witnesses that he was not intending to say that he had seen the Muslims at the scene of the crime. The Tribunal recorded that it also put to the applicant its concerns about his outstanding claim that the BJP or other Hindu groups might view him adversely because he would not give false evidence and that it discussed state protection with the applicant in the course of the hearing.
In its findings and reasons the Tribunal accepted the facts as set out in the record of the hearing. It accepted that the applicant was pressured by some Hindus, including the secretary of the local branch of the BJP, to give false evidence in order to convict some Muslims after the murder of his neighbouring Hindu leader in the incident in October 2002. It also accepted that Muslims warned him not to give false testimony and that the police, under pressure to solve the case, wanted to take evidence from the applicant despite his protestations that he was not at the scene at the time. The Tribunal accepted that such pressures were concurrent with and/or contributed to a number of unfortunate events in relation to the applicant’s business, finances and a breakdown in his marriage.
The Tribunal considered the applicant’s claim that he feared harm, in particular death threats at the hands of both Hindus and Muslims by reason of membership of a particular social group being those who refused to give false witness. It rejected the claim that he was at risk of harm at the hands of the Muslims, finding that the fact that the trial had begun and the applicant was not involved should put to rest any fears they may have had that he would be persuaded to give evidence that would implicate the Muslims.
In relation to the applicant’s claim to fear harm at the hands of particular local Hindus who wanted him to give false evidence to secure a conviction against the Muslims, the Tribunal suggested that events had gone “out of their hands” with the detention of two Muslim suspects and a trial under way. The Tribunal did not accept that “witnesses who refused to give false evidence” constitute a particular social group, such persons not being a recognisable or cognisable group in society sharing some interest or experience in common. It also found that there was no fear of persecution for reason of religion, noting that the persons the applicant feared were his co-religionists and those who also shared his political affiliation.
The Tribunal noted that the applicant had acknowledged that his refusal to give false evidence would be respected by the court if known and that he had not claimed, nor did the evidence suggest, that he feared harm at the hands of the authorities. It found the claim about the lack of positive action by the police to stop certain people from harassing or talking to him could not be regarded as a general failure of state protection. It also had regard to the fact that no serious harm had befallen the applicant in the two-year period in which he stayed in India after the incident. It found that the problems the applicant had with his business and marriage were not necessarily attributable to those arising out of the incident and that his domestic problems could not be classified as persecution within the meaning of the Refugees Convention.
The Tribunal was not satisfied the applicant had suffered serious harm (let alone harm amounting to persecution for a Convention reason) in the past. It found the chance that he would so suffer in the reasonably foreseeable future to be remote. It was not satisfied that he had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this court on 29 March 2005 which raised a number of general and unparticularised grounds. He filed an amended application on 6 June 2005 and told the court that he had nothing to add to what was in that amended application, although in submissions in reply he raised one further issue to which I will return.
The amended application is expressed as raising additional grounds so I should first address the application which as I have indicated raises nine unparticularised general grounds such as lack of good faith, denial of natural justice, failure to comply with the Migration Act 1958 (Cth) (the Act). These generally expressed grounds do not in their unparticularised form raise any jurisdictional error in the decision of the Tribunal.
The first additional ground in the amended application refers to the elements that are required to satisfy the Convention definition of refugee and claims that the applicant met those four key elements and therefore was entitled to a protection visa. However such claim seeks merits review which is not available in this Court. (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The second ground is that the Tribunal failed to see that on the one side the applicant was threatened by the Hindu BJP group to tell the police about the murder of his neighbour; on the other hand he claimed he was threatened by the anti-Muslim group not to tell anything. However, it is clear from the Tribunal reasons for decision that it understood the two aspects of the applicant’s claims in relation to a claim to fear both Hindus and Muslims. It summarised such claims. It set out its discussion of such claims in the course of the Tribunal hearing. It then dealt with each aspect of his claims, first rejecting his claim that he was at risk of harm at the hands of the Muslims who he claimed had warned him not to give false testimony and secondly, considering and rejecting the claim that there was a Convention nexus to his claim to fear persecution at the hands of Hindus. It concluded that such fear was not for a Convention reason, rejecting the possibility that “witnesses who refuse to give false evidence” constitute a particular social group, correctly applying the test in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [27] and [36]. It noted the lack of past harm and found that there had been no failure of state protection in concluding that the chance the applicant would suffer persecution for a Convention reason in India was remote. Each aspect of those claims was dealt with and it cannot be said that the Tribunal failed to take into account relevant considerations, which seems to be the basis for ground 2 of the amended application.
The third ground is that the Tribunal failed to see that the applicant was not able to live in other places in the country as the BJP had roots in all places in India. Again this ground is expressed as a disagreement with the Tribunal’s view in relation to factual issues and its conclusion in relation to such facts. It seeks merits review. In any event the Tribunal did not make a relocation finding. Rather, in finding that the applicant had not suffered harm amounting to persecution, it had regard to the fact that no serious harm had befallen him in the two years he stayed in India after the incident.
Ground 4 is that the Tribunal failed to note that the applicant’s complaint to the police was not acted upon and contends that the applicant has no place to go and make complaint. However, the Tribunal did note the failure of the local police to stop certain people from talking to the applicant (which was experienced as haranguing or harassing by him). It took such claim into account in considering state protection.
The contention in ground 5 is that the Tribunal committed a factual mistake in stating that the applicant “should have obtained AVO or filed any affidavit to the higher authorities” and that this indicates a failure to appreciate that the applicant could not do this as he was threatened by both sides. This ground appears to take issue with the Tribunal record of what occurred during the Tribunal hearing and the Tribunal’s suggestion to the applicant that he “could” seek state protection at a higher level than the local police or make a sworn statement to the police to the effect that he was away from home at the time of the murder. The Tribunal did not make a “finding” in this respect as contended. Moreover, in its reasons for decision the Tribunal had regard not only to the failure of the local police to act but also to the fact that the applicant did not claim to fear harm at the hands of the authorities. In any event, there is no jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
In grounds 6 and 7 the applicant contends that the Tribunal failed to see that the applicant could not relocate to another part of India and made a mistake in saying that the problem was a local one. Again, the Tribunal decision was not based on a relocation finding. It did not find that the problem was a “local one” but rather that an aspect of the applicant’s fear was of “particular local Hindus”. Factual findings are a matter for the Tribunal. As expressed such claims seeks merits review. It has not been established that the Tribunal misunderstood or failed to consider any aspects of the applicant’s claims.
Ground 8 is that the Tribunal committed a mistake in saying that the failure of some local police cannot be called a general failure of state protection. This complaint was not elaborated on and again appears to be taking issue with the Tribunal’s factual findings and conclusions in relation to the material before it. It seeks merits review rather than establishing a basis on which jurisdictional error is established.
The last ground in the amended application contends that the Tribunal committed a mistake in saying that the applicant had no genuine subjective fear of persecution. The Tribunal’s finding was not based on whether the applicant had a genuine subjective fear of persecution. As set out above, the Tribunal was not satisfied that the applicant had suffered serious harm let alone harm amounting to persecution for a Convention reason in the past and found the chance that he would so suffer in the reasonably foreseeable future to be remote. No jurisdictional error is established on the basis contended for by the applicant.
Finally, in oral submissions in reply the applicant contended that he had explained to the Tribunal that he had been compelled to give evidence against Muslims and that the Tribunal did not take that into account. The applicant suggested that he had made such claim in connection with his protection visa application and to the Tribunal. However, the only account of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded that as a result of the incident two Muslims had been charged and were in custody awaiting trial and that rather than having been compelled to give evidence against such persons, in fact the applicant had not been summoned to be a witness. This is consistent with the Tribunal statement that it put it to him that it did not accept he was still being targeted by the Muslims as evident from his absence from the trial and from any list of witnesses.
On the material before the Court it has not been established that the Tribunal failed to take into account an aspect of the applicant’s claims or otherwise fell into jurisdictional error on the material before the Court.
As no jurisdictional error has been established the application must be dismissed. The applicant has been unsuccessful. The first respondent seeks that he meet her costs in the sum of $5,000. There is nothing in the circumstances to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant suggested that the amount sought was a large amount but it is consistent with the costs awarded in matters of this nature.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 12 September 2006
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