SZHLL v Minister for Immigration

Case •

[2006] FMCA 134

•

2 February 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLL v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 134
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India claiming fear of persecution for reason of religion – commercial dispute – meaning of ‘information’ for the purposes of s.424A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.91R, 424A

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679

Applicant: SZHLL
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3105 of 2005
Delivered on: 2 February 2006
Delivered at: Sydney
Hearing date: 2 February 2006
Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Mr Jayawardena
Solicitor for the Respondent: Ms Quinn
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of 2,800.00.

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3105 of 2005

SZHLL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 29th September 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. 

Background

  1. The Applicant is a citizen of India, who arrived in Australia on 28th September 2004. He applied for a Protection (Class XA) visa, which was refused on 10th May 2005. On 8th June 2005, he sought a review of that decision from the Refugee Review Tribunal. The Tribunal invited the Applicant to attend a hearing where the Applicant gave oral evidence. This hearing took place on Thursday


    1st September. The Applicant indicates that he was a Hindu, by religion, that he was married and has a child. 

  2. The Applicant became involved in an ugly incident on 27th June 2002, where people from another company came to the office where he worked and asked for his employer. The other people demanded money that they claimed was owed by the employer.  The Applicant denied to hand over any money without the approval of his employer, who was not present, and, unfortunately, the visitors set upon him, beat him and kicked him and damaged the office. 

  3. The Applicant said that he was severely beaten, and to such an extent that he required medical treatment. Whilst they were beating him, the Applicant said that his attackers were screaming that he must be punished because he was a Hindu.

  4. It was not until 1st July 2002 that the Applicant complained to the police but the police were less than enthusiastic about prosecuting his claim. It turns out that the owner of the other company, who was responsible for the assault on the Applicant was a powerful person, and the Applicant found out that his private prosecution against these people had attracted the ire of this man who had threatened him.  The Applicant went to the police but the police did not assist.

  5. Eventually the Applicant said that, in July 2004, some people employed by the other man came to his residence when he was out, and threatened his family and attempted to intimidate the Applicant, by threats of death, to withdraw his case.  The Applicant felt that he was in considerable danger, and when he went to the police, to his horror, he was detained, and kept in custody himself.

  6. The Applicant said that a gang of Muslims had actually gone to the house and threatened his wife, told her that the Applicant would be killed if he continued with the case against this man. The Applicant said that his wife was scared to death. As a result, he said, he had to flee the country.

  7. The Applicant told the Tribunal that he feared relocation in India would not save him, as he believed that he would be subject to harassment, harassment by the police, and he says that this dispute has escalated into a religious dispute, as he is a Hindu and his pursuer is a Muslim.  This man has considerable political influence in India and, as a result, he cannot obtain police protection.

  8. The Tribunal found that any harm that might befall the Applicant arose not for a Convention reason but arose out of a commercial dispute from the Applicant's employment. The Tribunal, at page 77 of the Court Book, found no evidence that the owner of the other company - should he use any political influence to which he has access - would be using the power of the state to harass or harm the Applicant.  The Tribunal considered that if the Applicant did have a fear of prosecution, it would be reasonable, in the Applicant's particular circumstances, to relocate to some other city, distant from his pursuer. 

Tribunal’s Findings and Reasons

  1. The Tribunal found that it was speculative that the owner of this other company would pursue him throughout India but, even if that did happen, any harm the Applicant might suffer would not be Convention-related but would be as a result of this commercial dispute.  Nevertheless, the Tribunal found that it was fanciful that the Applicant should claim that this person had the influence to track and find him wherever he might relocate in the vast country of India, and that this person would have such a level of political influence that he would also influence the police throughout India.

  2. The Tribunal found there was no real chance the Applicant would suffer serious harm for a Convention-related reason, if he were to return to India, and, therefore, found that the Applicant did not satisfy the criterion set out in sub-s.(2) of section 36 of the Migration Act, for a protection visa. Accordingly, the Tribunal affirmed the delegate's decision.

Application for Judicial Review

  1. The Applicant filed his own application and filed an Amended Application on 29th December 2005. He claims the declaration of the Tribunal is null and void, and seeks writ sub certiorari, prohibition and mandamus and also seeks an order for costs.  He sets out three grounds for review of his application. 

  2. The first ground is that the Tribunal failed to consider, primarily, whether there would be a real chance that the Applicant's life would be in danger, if asked to return to his country of origin, and that this was a clear breach of s.91(o) of the Migrant Act; the second ground relates to a breach of s.424A; and the third ground was that the Tribunal's finding to the effect:

    The essential and significant motivation for the persecution feared is a commercial dispute arising from the Applicant's employment.

    was an erroneous finding by the Tribunal and contrary to the law.

  3. What then happened in the course of these proceedings was that the Applicant consulted his present solicitor, Mr Jayawardena, who has appeared for him today.  I commented during the course of the hearing that it was most unfortunate that the Applicant did not consult his solicitor at an earlier stage in the proceedings. The Applicant's solicitor has prepared, at short notice, an extensive outline of submissions and, of course, has placed himself on the record.

  4. In the course of submissions before me today, the Applicant's solicitor has identified the three grounds referred to in the Amended Application, and indicated that the primary ground on which he sought to argue was ground 2. His submission is that the Tribunal had failed to exercise a mandatory provision in the Act, namely, s.424A(1), which requires the Applicant to be given certain information.

  5. I indicated during the course of the hearing that the Applicant's solicitor's assessment of the relative strength of the three grounds was appropriate. I will deal briefly with grounds 1 and 3 at this stage.

  6. It appears to me, on a perusal of the first ground, that it must fail. It is apparent, from the text of the Tribunal decision, that the Tribunal had found that the essential and significant reason for any claim of harm was not a Convention reason, which meant that s.91R of the Act does not apply, and that paragraph 91R(1)(a) states that:

    The Convention does not apply to persecution if a convention reason is not the essential and significant reason for the persecution.

  7. There was no failure to comply with the terms of s.91R.

  8. In any event, the Tribunal did assess the factual basis of the Applicant's claim and, while not denying that the Applicant had suffered assault and ill-treatment from the people involved, was sceptical that their influence would extend beyond the immediate area, and rested primarily on the fact that any harm that was threatened arose from criminal actions by these other people, arising out of a commercial dispute.  It must follow, therefore, that the first ground fails.

  9. In respect of the third ground, that the Tribunal's finding to the effect:

    The essential and significant motivation for the persecution feared is a commercial dispute, arising from the Applicant's employment.

    was an erroneous finding by the Tribunal and contrary to law. That is indeed a challenge to the factual findings made by the Tribunal and, of course, it is well-established - by such decisions as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - that there can be no merits review conducted by a Court conducting judicial review.

  10. Factual findings are a matter for the Tribunal, ie, the administrative decision-maker, so long as there is evidence to support those factual findings.  The reference to that is, again, the well-known decision of Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407, and particularly the judgment of McHugh J at [67].

  11. I would make it clear that the Applicant's solicitor was not the draftsman of those grounds, and, indeed, I see that they have been faxed from the Applicant's town in southern New South Wales, and it is unlikely that the Applicant's solicitor would have had much knowledge of them, at all, in the circumstances.

  12. The primary challenge is to whether or not there is a breach of s.424A of the Migration Act. The section provides that, in sub-s.(1):

    Subject to subsection (3), the Tribunal must:

    (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.

  13. The Applicant relies on the decision of the High Court of Australia, in SAAP v Minister for Immigration [2005] HCA 24, and submits that this is the most substantial issue.

  14. The information that the Applicant's solicitor submits was not communicated was the Tribunal's finding that this dispute arose out of a commercial dispute, even though it developed into one with religious overtones, with the Applicant being threatened, not only because he refused to do the other man's bidding but because he was a Hindu, and threats were made to him on that basis.

  15. The fatal flaw in the Applicant's submission is that the meaning of the word "information" in s.424A does not cover the Tribunal's subjective appraisals, thought processes or determinations. This was a conclusion at which the Tribunal arrived. It matters not that a delegate of the Minister, in the decision under review, had arrived at the same conclusion. It is apparent from a reading of the Tribunal decision, and particularly the findings and reasons, that the Tribunal Member did not just adopt the delegate's reasoning but arrived at this conclusion on an independent basis, from a consideration of the evidence given by the Applicant at the hearing. The Applicant, as I said, attended the hearing, and gave oral evidence.

  16. The finding that the dispute was a commercial dispute and, even though it had religious overtones, did not arise, essentially and significantly, for a Convention reason is not information under section 424A. The authorities are Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95], and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at paragraph 25.

  17. It follows that I am satisfied that no jurisdictional error has been demonstrated. As there is no jurisdictional error, the decision is a privative clause decision, and the application must be dismissed.

  18. There is an application for costs in the sum of $2,800.00. To my mind, that is a modest amount, well within the scale provided by Schedule 1 of the Federal Magistrates Court Rules. I will order that the Applicant is to pay the First Respondent's costs, in the sum of $2,800.00. I am mindful of the fact that the Applicant will have to pay his own solicitor's costs, and he should do so promptly. I will allow time to pay. The Applicant is allowed four months to pay the Respondent's costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  3 February 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

0

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10