SZGGD v Minister for Immigration
[2006] FMCA 620
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 620 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – no reviewable error found – application dismissed. |
| Applicant: | SZGGD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1182 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 27 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1182 of 2005
| SZGGD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision of the RRT was handed down on 15 April 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are set out in the Minister's written submissions. I adopt as background for the purposes of this judgment paragraphs 2 to 10 of those submissions:
The applicant is a male citizen of India born on 5 March 1976.[1] He arrived in Australia on 27 September 2004.[2]
[1] court book, page 33
[2] court book, page 37
The applicant applied for a protection visa on 8 November 2004.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 13 December 2004.[5]
[3] court book, pages 1 to 42
[4] court book, pages 27 to 32
[5] court book, pages 43 to 52
The applicant applied to the RRT for review of the original decision on 4 January 2005.[6]
[6] court book, pages 53 to 71
The applicant gave oral evidence before the RRT on 2 March 2005. The RRT handed down its decisions on 15 April 2005.[7]
[7] court book, pages 87 to 107
The applicant's claims
The applicant claimed to fear persecution in India because of a dispute with a Mr Ravi, who had married his sister. He claimed that:
a)He was from the Naidu community, and Ravi's family was from the Thevar community. For this reason, the applicant's parents did not want his sister to marry Ravi. However, they finally agreed to the marriage, which took place in June 2000.
b)After three months, the applicant's sister complained to her family of the abuse she suffered from Ravi and his family.
c)In November 2000, his sister was admitted to hospital. Ravi said that she had slipped in the bathroom, but she said that she had been attacked by Ravi. When the applicant's father confronted Ravi, he was attacked also. After a complaint from the applicant's father, the police arrested Ravi, but he was released on bail after three days. The applicant claimed that no serious action was taken against Ravi because of his brother's involvement with Thevar Peravai.
d)After his release, Ravi and his brother came to the applicant's house and attacked his family. The police refused to take their complaint.
e)In January 2001, the applicant's sister went back to Ravi's house, after he assured her family that there would be no more problems. On 15 May 2001, the applicant's sister was killed. The police and doctors said that she had committed suicide by taking poison, but the applicant claimed that she had been beaten to death by her husband. He claimed that Ravi's family had bribed the police and doctors and that their hands were tied because of his family's political involvement. The applicant's father made a complaint, and in July 2001 Ravi was arrested. He was released on bail within one week. Subsequently, he came to the applicant's house with his 'rowdies' and threatened the family.
f)On 30 July 2001, the applicant's father was killed while riding a motorcycle. It was found to be a road accident by the police, but the applicant claimed that he had been murdered. The police ignored the applicant's claims. The applicant went to Ravi's house to ask about his father, but he was threatened. The applicant went to the police commissioner, but Ravi had gotten there first. However, the police commissioner said that he would do something about the applicant's complaint.
g)Ravi and his 'rowdies' went to the applicant's home and attacked his mother and sister. They were admitted to hospital, where his mother later died.
h)Fearing for his life, the applicant escaped to Singapore in September 2001. He lived there for two years, and returned to India in August 2003. When he returned, he could not find his sisters. He was again targeted by Ravi's family. He hid in several places, but finally departed for Australia in September 2004.
At the hearing, the applicant repeated a number of times that the reason for the harm he feared was because Ravi and he came from different communities, and the Thevar community was the majority so the applicant could not receive any protection from the authorities.
The decision of the RRT
There were three reasons for the RRT's decision to affirm the decision refusing to grant the applicant a protection visa. The RRT found that there was no Convention basis for the applicant's claimed fear of persecution.[8] It found that:
[8] court book, pages 98 to 101
a)The fact that the applicant's family belonged to the Naidu community and Ravi's family belonged to the Thevar community did not prevent his sister's marriage.
b)The claimed harm suffered by the applicant's family members was not for a Convention reason, and so s.91S operated to prevent the applicant claiming persecution because of his membership of his family.
c)The harm claimed by the applicant was not the result of a community dispute at all. The applicant had not claimed that anyone from the Thevar community other than Ravi's family and their 'rowdies' had attacked anyone in his own family. He did not claim that their Thevar perspective provided an obstacle for the marriage, was the reason for Ravi's treatment of the applicant's sister, nor even that the applicant's sister had breached some cultural code which resulted in her treatment. He did not provide any evidence that there was any hostility between the communities.
The RRT made a number of factual findings about the particular incidents of harm claimed by the applicant.[9]
a)With respect to his sister's death, the RRT did not accept that she had been murdered. This was because all of the evidence pointed to a suicide. It did not accept the applicant's claims of a conspiracy by Ravi and his family. It found that the applicant's claims in this respect were uncompelling and unreasonable, and that the death was fully investigated. It also found that there was no breakdown in effective state protection. It found that, given the applicant's claims about his sister's death, he was not a credible witness.
b)With respect to his father's death, the RRT found that there was no evidence to support the claims, and that they were unfounded speculation. It did not accept that the applicant's father was murdered for any reason. It again found that this went to the applicant's credibility.
c)With respect to the applicant's claims that Ravi's family could buy the police and justice so that he, as a normal citizen, could not get justice, the RRT found that this was not supported by the applicant's own evidence. It found that the claims made by the applicant to the police were actually investigated.
d)With respect to the attack on his mother and sister, the RRT found that this was not for a Convention reason, but was rather because the applicant had complained to the police about Ravi.
e)With respect to the damage to the house, which the applicant discovered after his return from Singapore, the RRT found that it could not be satisfied that any damage was directed at the applicant or his family, or that the damage was inflicted for a Convention reason.
f)The RRT also found that the applicant's return to India from Singapore, for a period of 13 months, was inconsistent with his claimed fear of persecution.
The RRT made a finding that the applicant could relocate within India if he did not wish to be close to Ravi and his family.[10] It found that it would be reasonable in all the circumstances for the applicant to do so. It did not accept the applicant's claims that, because of their political influence, Ravi's family would be able to, or would want to, find him and harm him.
[9] court book, pages 102 to 105
[10] court book, page 106
The Minister's submissions also adequately summarise the grounds of the judicial review application. I adopt paragraph 14 of those submissions, summarising the applicant's grounds:
The application filed on 9 May 2005 alleges as follows:
a)Ground one. The RRT failed to make findings on material questions of fact. In particular, it failed to make any findings on whether the Naidu community was being persecuted by the Thevar community, and whether the applicant faced a genuine fear for that reason.
b)Ground two. The RRT's findings about the applicant's credibility contained jurisdictional errors. It found that the applicant's sister had committed suicide without considering the applicant's claim that he had seen bruises on her body which suggested that she had received a beating. The RRT failed to consider the applicant's claim of having heard first-hand accounts of his father's accident when it found that the applicant's claims were unfounded speculation.
c)Ground three. The RRT failed to consider the applicant's claim of being persecuted because of his political opinion, which should have been inferred because of his remark that members of the Thevar community were supported by the ruling DMK political party.
The parties made oral submissions today. The applicant's brief oral submissions were limited to seeking to explain the reasons why he fears persecution in India. Ms Quinn restricted herself to explaining orally the Minister's written submissions. I agree with the Minister's submissions. Paragraphs 15 to 18 deal with the judicial review application. I adopt those paragraphs for the purposes of this judgment:
The respondent submits that none of the grounds alleged by the applicant can be made out.
With respect to ground one:
a)The RRT did consider whether there was any tension, of a type that could lead to the applicant being persecuted, between the Thevar community and the Naidu community.[11]
[11] court book, page 101
b)In particular, it noted that the applicant did not provide any evidence to support his claim that there was any hostility between the two communities, let alone to such a level that he had a well-founded fear of serious harm because of his membership of the Naidu community. It also noted that the applicant did not claim that his membership of the Naidu community meant that he was denied education or employment, or experienced any other type of harm. The RRT accepted that the Naidu community was a minority, while the Thevar community was a majority, but did not accept that the Naidu community did not receive any protection.
c)The RRT clearly considered whether or not the applicant might be persecuted because of his membership of the Naidu community, and whether there was any general hostility between the two groups. The applicant's first ground cannot be made out.
With respect to ground two:
a)The RRT considered the applicant's claims to have seen marks on his sister's body as part of its assessment of whether it accepted the applicant's claims that she was murdered. The RRT found, however, that "there are also equally other plausible explanations as to injuries the applicant claims he saw".[12] It is clear that the RRT took the applicant's reasons for thinking his sister was murdered into account when it found that, on the evidence before it, she committed suicide. The RRT was under no further obligation in relation to these claims. It weighed up the evidence and made a finding of fact, which is not susceptible to judicial review.
[12] court book, page 102
b)There is no evidence before the Court that the applicant made any claim to the RRT of first-hand accounts about the father's death. The description of the father's death in the statutory declaration provided with the protection visa application did not mention any accounts of eyewitnesses (or anyone else), which led the applicant to believe that his father had been murdered.[13] In its description of the discussion of this issue at the hearing, the RRT stated that "He did not claim to have been present when his father died or to know someone who had witnessed the accident".[14] The RRT considered the evidence it had before it, and found that the applicant's father had not been murdered. This was a factual finding reached by weighing up the evidence provided, and should not be overturned by a Court.
[13] court book, page 30
[14] court book, page 95
With respect to ground three:
a)Any claim that the applicant made based on political opinion was intrinsically linked with his claims of community hostility, and with his claim that he would not be able to seek protection from authorities because of the political influence of the Thevar community (and in particular the Ravi family).
b)The RRT expressly considered these claims, and rejected them.
i)The RRT rejected that there was any reason to fear the Thevar community generally. Whether the applicant was claiming to fear the community because of his political opinion or because of his particular social group does not change the fact that the RRT found that the applicant did not have a well-founded fear.
ii)The RRT also rejected the claim that the applicant would not be able to access state protection because of the status of the Thevar community - whether as a political force or simply as a majority group.
c)The RRT clearly considered all of the claims made by the applicant. Properly understood, the grounds advanced by the applicant amount to no more than a disagreement with the facts as found by the RRT. They are not properly matters to be considered by a court exercising judicial review.
No other legal issue concerning this RRT decision is apparent to me. I find that the decision of the RRT is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,200. I accept that that is a reasonable party/party assessment. The applicant sought the opportunity to pay by instalments. That is a matter that the parties can discuss themselves. I will not require payment of costs by any particular time. I will order that the applicant pay the first respondent's costs and disbursements of an incidental to the application, which I fix in the sum of $4,200.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 May 2006
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