SZGAL v Minister for Immigration and Citizenship

[2007] FCA 1627

FEDERAL COURT OF AUSTRALIA

SZGAL v Minister for Immigration and Citizenship
[2007] FCA 1627

SZGAL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1363 OF 2007

RARES J
23 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1363 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	23 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $2,300.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1363 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	23 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision in the Federal Magistrates Court SZGAL v Minister for Immigration [2007] FMCA 1016. The trial judge dismissed the appellant’s claim for constitutional writ relief against a decision of the Refugee Review Tribunal signed on 16 November 2006 affirming a decision of a delegate of the Minister not to grant a protection visa to the appellant. The appellant is a citizen of the Republic of India.

   THE APPELLANT’S CLAIMS IN THE TRIBUNAL

2. He made a series of claims but the tribunal dealt with those claims on which, he told it, he relied and wished to pursue before it.  He was a businessman in Kerala State and had run a travel agency there.  One of the clients of the travel agency was a person whom the police claimed was involved in the People’s War Group, known as an organisation associated with Naxalites.  The Naxalites were a Maoist inspired political movement that had originated in an area of West Bengal (Naxalbari). 

3. The tribunal considered that the appellant may have been using the terms ‘People’s War Group’ and ‘Naxalites’ interchangeably but placed no weight upon the fact that they may be different groups.  The tribunal found that in late 2001 the local police in the appellant’s home town came to his travel agency with a valid search warrant and confiscated travel records relating to one of his customers who had been accused of being associated with the People’s War Group or Naxalites.  The appellant was asked to accompany the police to the police station to assist them with their inquiries about that customer.  The tribunal found that his claims to have been tortured by the police were a huge exaggeration. Rather the tribunal accepted that the appellant may have been uncomfortable at the police station and may have been interviewed for a fairly long time, leaving the police station only the next day.  Following his interview, the tribunal found that the police were satisfied that he had provided all the information that he could.  The tribunal found that the appellant left India on a business trip shortly after the encounter and remained away for about four months.  No attempt was made by the Indian authorities to prevent his travel.

4. The tribunal found that the police actions towards the appellant did not constitute serious harm or harassment and was satisfied that there was no evidence to suggest the police imputed to the appellant any of the political opinions which they suspected were held by his customer, in respect of whom the warrant had been executed.  Following with incident with the warrant, the tribunal accepted that the police came to the appellant’s travel agency during office hours on perhaps six occasions between late 2001 and early 2004 and on those occasions asked the appellant if he had any further or updated information on the suspect customer.  It found that it was not unreasonable for police to keep checking on whether the customer, whom they had wanted to question, had asked his regular travel agent to make any further arrangements for him.  The tribunal found there were no claims, and the evidence did not suggest, that the police behaved in any improper fashion towards the appellant.  It found that the police were not harassing him but were making reasonable inquiries. The tribunal found that it was satisfied that the appellant was not the subject of any adverse interest by authorities in Kerala or India generally.

5. The second claim which the appellant had pressed before the tribunal was that he had been harassed by an extortionist to whom he had paid money between about May 2002 and early 2004.  It accepted that claim but said it was immaterial whether the extortionists were Naxalites or not.  That was because the tribunal found the identity of the extortionist was immaterial to the fact that the appellant had been harassed by an extortionist, but that he had not gone to the police.  The appellant had told the tribunal that he assumed that the higher authorities in the police force would not act against the Naxalites.  The tribunal found that assumption to be unreasonable.  It said that it was not satisfied that the extortionists were in fact Naxalites but accepted that the victims of the extortionists were persons from whom money was sought to be extracted on the basis of their perceived wealth, rather than for a Convention reason.

6. Critically, the tribunal was not satisfied that the appellant could not access State assistance to deal with that particular sort of harm.  It found that he chose not to seek State assistance because he refused to divulge any useful information to the police.  Moreover, the appellant told the tribunal that the extortionist made no further inquiries about him and did not contact him with any further demands, after he sold his travel agency business in early 2004.  It rejected his claims that after he left India the extortionist had made inquiries of his wife as to his whereabouts and made threats against him to his wife if he were to return to India.

   THE TRIBUNAL’S CONCLUSION

7. Ultimately, the tribunal did not find that any serious harm, let alone harm amounting to persecution, had befallen the appellant in the past for a Convention reason.  Moreover, it found that the chance that any such harm would befall him in the reasonably foreseeable future was remote.  That led to the conclusion of the tribunal that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and was thus not a refugee.

   NO JURISDICTIONAL ERROR

8. The application to the Federal Magistrates Court was based on a claim for reconsideration of the decision of the tribunal and an argument that the appellant strongly felt its decision did not justify his cause and had greatly disappointed him.  He said:

   ‘I have no other ground than applying for the reconsideration of the tribunal decision.’

9. His Honour noted that the appellant had been given the opportunity to file and serve an amended application but had not taken that up.  He found that there was no jurisdictional error raised by the application.  I agree.  His Honour recorded that the appellant informed him he was seeking reconsideration of his application on a humanitarian basis, but the trial judge pointed out to the appellant that that was not within the court’s jurisdiction.  That was a correct statement by his Honour.  The appellant made a similar appeal to me which I again informed him was not within the jurisdiction of the Court. 

10. Before his Honour, the Minister fairly raised one other possibility of a ground on which the appellant might have been able to seek relief.  That was a suggestion that it might be possible to find that the targets of the extortion were wealthy businessmen or persons of perceived wealth, who may have amounted to a social group for the purposes of the Convention.  His Honour said that in a society with a marked distinction between rich and poor, wealth might be a common and distinguishing characteristic, but that that characteristic did not have any necessary link with a fear of persecution.  However, what was determinative with his Honour was the finding of the tribunal that the appellant had made a conscious decision not to seek protection of the Indian authorities.

11. The tribunal identified that Art 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, defined a refugee as any person who relevantly:

    ‘… owing to a well founded-fear of being persecuted for reasons of ... membership of a particular social group ... 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 ….’

12. The tribunal found that the appellant’s decision not to seek police protection from the extortionist was unreasonable and also found that, as I have recited, the chance was remote that he would face any serious harm were he returned to India in the reasonably foreseeable future. 

13. His Honour relied on those findings, as do I, to dismiss the possibility that the appellant could establish any jurisdictional error in the reasons for decision of the tribunal.

14. In essence, the appellant has sought to have the Court, below and on appeal, conduct a merits review of the decision of the tribunal with which he is dissatisfied.  That is beyond the jurisdiction or function of either Court.  I have independently reviewed the appeal papers and the decision of the tribunal.  I am unable to detect any basis upon which the appellant ought be granted relief, nor have I been able to see any error in his Honour’s judgment.

15. For these reasons I would dismiss the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        26 October 2007

The appellant appeared in person.
Counsel for the Respondent:	HPT Bevan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 October 2007
Date of Judgment:	23 October 2007