SZGXP v Minister for Immigration
[2006] FMCA 1557
•6 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1557 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91X, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 |
| Applicant: | SZGXP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2111 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Punjabi interpreter |
| Advocate for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 9 August 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2111 of 2005
| SZGXP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 29 June 2005 and handed down on 19 July 2005, affirming a decision of the delegate of the first respondent made on 5 April 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGXP”.
Background
The Tribunal decision of Sue Zelinka, reference N05/51166, contains the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 18 December 2004.
On 31 January 2005, the applicant lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 5 April 2005, a delegate of the Minister refused to grant a protection visa and on 3 May 2005, the applicant applied to the Tribunal for of the delegate’s decision.(Court Book (“CB”) 51)
Information in the protection visa application indicates that the applicant is a Sikh married man in his fifties from Punjab who worked as a security guard in the State Bank of India from 1975 until his departure in December 2004. He also worked, simultaneously, as a security guard at another location from January 1995 to January 2003.(CB 53)
Applicant’s Claims
The applicant’s claims are set out in the written submissions prepared by Mr Markus on behalf of the first respondent. I adopt paragraphs 7 to 17 for the purposes of this judgment:
7.The applicant’s claims are set out in his Protection visa application, and oral evidence in support of his claims at the RRT hearing, as follows:
Protection visa application [RD 16-19]
8.The applicant was a supporter of and loyalist worker for the Akali Dal Party. He provided security to the workers and party leaders of Akali Dal. For four years he worked with Mr Ranjit Singh Walia (“MrWafla”), an Akali Cal candidate. Mr Walia was defeated in the elections of 2002, when the majority of seats was won by Congress Party, that formed the new government, who started arresting supporters and leaders of Akali Dal. After the elections, Mr Walla began organising rallies against Ravinder Khanna of the Congress Party.
9.In August 2003, the applicant was travelling with Mr Walia as his bodyguard when two people attempted to snatch the applicant’s gun. The applicant and Mr Walia were beaten severely and threatened not to speak about the Congress Party or its members. The applicant attempted to lodge a police report the next day, however the police did not register the report.
10. In January 2004, Mr Walia’s office and house were raided by the Punjab police, as Mr Walia was implicated in a corruption case. The applicant was interrogated about Mr Walia’s activities, accused of being involved in the corruption of Mr Walia, and threatened that if he did not cooperate, he would also be implicated.
11. On 20 July 2004, while the applicant was on duty as a security guard at night in a bank, he was suddenly attacked on his head, fell down, was severely beaten and tied down. The applicant heard one attacker say that they had given him enough warnings and it was time to cooperate. The applicant suspected they were members of the Punjab police.
12. The applicant claimed that he left India to save his life, as the authorities would not protect him, who themselves are the persecutors.
Oral evidence at RRT hearing [RD54-57]
13. The applicant was an employee of the State Bank at the time of his departure from India, however, he has since resigned. He was for the last decade on permanent night shift at the State Bank and took extra daytime employment as a casual security guard for Mr Walia.
14. In August 2003 the applicant was severely beaten whilst working as Mr Walia’s bodyguard. The applicant reported the incident to police, who failed to register his report.
15. The applicant said he was ‘on duty’ as a bodyguard at the home of Mr Walia during the January 2004 raid by Punjabi police, who were executing search warrants in relation to corruption allegations. The applicant was interviewed, threatened and continued to be harassed by the police at his workplace and home. Eventually the applicant left Mr Walia’s employ, about two or three months after the raid, which the RRT calculated to be around March/April 2004 [RD 55].
16. In relation to the July 2004 incident, whilst on night duty at the bank, the applicant saw a van pull up, and on investigation, he was hit very hard on the back of the head, causing him to collapse. His assailants said to him he was against the Congress Party, and he should leave India. The applicant believed the assailants were after him personally and that they could have been anyone from the Congress Party, or from Akali Dal, angered by his giving information to the police about Mr Walia.
17. The applicant claimed he went into hiding before leaving for Australia. He later clarified it was in fact a holiday, with the bank’s approval, to recuperate after the July 2004 attack. The applicant claimed that his wife and daughter were also ‘in hiding’, but later clarified that he meant they were staying with relatives.
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons are contained in the first respondent’s written submissions and I adopt paragraphs 18 to 21 of those submissions:
18. On 19 July 2005 the RRT handed down its decision, that affirmed the decision of the delegate not to grant the applicant a Protection visa [RD 50-58].
19. The RRT accepted that the applicant was injured in August 2003 whilst working as a bodyguard for an Akali Dal politician, however the harm was in the nature of a work related injury for a bodyguard. The RRT found there was no real chance of such harm befalling the applicant in the future as he had discontinued that particular line of work [RD 57].
20. The RST accepted that the applicant’s employer was raided by police in January 2004 and that the applicant was questioned by police about his employer, however the SRI found no reason to believe this was an unlawful exercise. The RRT saw nothing unusual or sinister in the incident, or that “such ‘harassment’ constitutes harm of a type and severity that could be called persecution” [RD 57].
21. The RRT also accepted that the applicant was hit over the head at the bank in July 2004, however it found that the applicant was the victim of a robbery, being a night-watchman on duty alone, and that this assault was not in any way Convention related. The RRT expressly rejected the applicant’s claims to have been threatened during the robbery, findings the alleged threats to be every vague and hardly sufficient to warrant the carrying out of an attack by a number of men in a van in the middle of the night. The RRT found this claim to be “simply not plausible” and concluded that all the incidents of harm experienced by the applicant were not for Convention reasons, not well founded, and offered no credible reason why either the Congress Party or the Akali Dal Party would seek to harm him [RD 57-58].
Application for Review of the Tribunal’s Decision
On 9 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 8 November 2005, the applicant filed an amended application and on 25 May 2006 filed a further amended application which contained the following grounds:
1.The Tribunal failed to comply with It statutory duty under the Migration Act 1958 s.424A.
Particulars
a. The Tribunal had information from the Applicant’s visa application which was part of it reasons for affirming the decision, and failed to give the applicant particulars of the in formation in writing, explain why it was relevant and give him an opportunity to comment upon it.
2. The Tribunal’s decision was based on irrational and/or illogical reasoning and unwarranted assumptions.
Particulars
a. There was no basis for the assumption that the Applicant blacked out when he was assaulted
b. The Tribunal found that the Applicant’s injuries worn work related when his occupation was a political bodyguard. There is, therefore, a nexus between the injury and his perceived political opinion.
Submissions
The applicant appeared self-represented with the aid of a Punjabi interpreter. The applicant indicated to the Court that he relied upon his further amended application but had no written or oral submissions to make to the Court.
Mr Markus, appearing for the respondents, submits that the grounds in the further amended application as pleaded do not disclose any error, let alone any error going to jurisdiction. Ground one, and the particulars provided in support of that ground, failed to identify what was the “information” that the Tribunal was required to put to the applicant in accordance with s.424A(1) of the Act. Mr Markus submits that the Tribunal found that the harm suffered by the applicant in August 2003 was a work related injury. It also found that the harassment suffered by the applicant from January 2004 onwards was not sufficient to constitute persecution, and that the applicant was merely a victim of a robbery in July 2004 which was “a hazard of being a night-watchman on duty alone”. These were findings of the Tribunal based on the applicant’s evidence given at its hearing.
In respect of ground two, Mr Markus submits that even if “illogicality” were a ground of review capable of establishing jurisdictional error (which is not admitted), the applicant in substance seeks merits review under this ground. Contrary to what is asserted in particular 2(a), the Tribunal did not make a clear finding that the applicant “blacked out” when he was assaulted. Instead it noted that the applicant, from his own evidence, was rendered semi-conscious as a result of a blow to his head, “perhaps causing him to black out”.(CB 55-56) Even if this was a finding that the applicant had “blacked out”, the applicant gave evidence at the hearing that he was “hit very hard on the back of the head and lost part consciousness”, and the Tribunal put to him that such a blow could have caused him to black out, thus he would not have heard the threats made against him.(CB 56) If the Tribunal is considered to have made a finding that the applicant “blacked out”, such an inference was available on the evidence of the applicant himself, and would not be “illogical”.
In relation to particular 2(b), Mr Markus submits that the applicant seeks to cavil with the Tribunal’s findings of fact that any harm suffered in the past by the applicant was not Convention related and that the injury suffered by him in August 2003 was a “work-related injury for a bodyguard”, being “a random incident…due to the applicant’s being in a particular proximity to his employer”.(CB 57) This finding is essentially to the effect that, whilst the harm directed to the applicant’s employer may well have been for his political opinions, the harm suffered by the applicant were not directed at him because of any political opinions that he may have held, but because he was acting as a bodyguard to the person who was the intended target of the attack. This finding of fact was clearly open to the Tribunal on the evidence before it.
Reasons
Prior to a delegate granting a visa to a visa applicant, the criteria as set out in s.65 of the Act must be met. This places an evidentiary onus on the applicant to provide sufficient material to the delegate. The issue for the Tribunal was for it to be satisfied that Australia was under an obligation to provide the applicant with refugee protection if the applicant risked persecution in his country of origin should he be returned. The issue for the Tribunal, in its review of the delegate’s decision, is to establish whether the applicant would face Convention-based harm in the future should he return to his home country.
What may happen in the future has to be based on what has happened to the applicant in the past. The Tribunal accepted that the applicant had been in a number of specific situations which placed him in grave physical harm. However, the Tribunal would not accept that incidents of the same nature would occur to place in harm in the future.
The Tribunal was satisfied that none of the incidents that occurred in the past were Convention related, but rather, related directly to his occupation. There was no basis for the claim that Convention related harm put before the applicant in the future.(CB 57-58)
The applicant takes issue with the Tribunal’s findings of fact and claims that the Tribunal committed a jurisdictional error.
The applicant’s grounds cannot be sustained.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Mr Markus for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the further amended application. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists to suggest the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 December 2006
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