SZIBU v Minister for Immigration

Case •

[2006] FMCA 1420

•

11 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1420
MIGRATION – Review of decision by Refugee review Tribunal – whether applicant suffered harm because of political opinion or imputed political opinion – whether harm applicant suffered had a Convention nexus – whether relocation possible.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474; pt.8 div.2
First Applicant: SZIBU
Second Applicant: SZIBV
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 91 of 2006
Judgment of: Emmett FM
Hearing date: 11 September 2006
Date of last submission: 11 September 2006
Delivered at: Sydney
Delivered on: 11 September 2006

REPRESENTATION

Counsel for the Applicant: Mr Jayawardena
Counsel for the Respondent: Mr G. Kennett
Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG91 of 2006

SZIBU

First Applicant

SZIBV

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 November 2005.  The Tribunal decision affirmed a decision of the delegate of the first respondent dated 8 July 2005. 

  2. The applicants are a husband and wife. The first named applicant was born on 3 April 1971, claims to be from India and of Hindu faith. 


    The second named applicant’s application, being the wife of the first named applicant, is dependent on the outcome of the first named applicant.  The applicant arrived in Australia on 21 April 2005, having legally departed from Mumbai airport on a passport issued in his own name and a visitor’s visa issued on 30 March 2005. 

  3. On 24 May 2005, the applicant lodged an application for a protection class (XA) visa with the Department of Immigration and Multicultural Affairs.  On 8 July 2005, a delegate of the first respondent refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

  4. On 18 July 2005, the applicant lodged an application for review of the delegate’s decision with the Tribunal.  On 25 November 2005, the Tribunal affirmed the decision of the delegate to refuse a protection visa to the applicant. 

  5. On 11 January 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision and on the 28 April 2006 the applicant filed an amended application in the following terms:

    “GROUND ONE

    1. The Tribunal committed a serious jurisdictional error by it ‘overt reliance’ that the Applicant suffered harassment, loss of business and property damage in the hands of the “Thugs” whereas what the Applicant said it was the terrorists, meaning “Muslim Terrorists” who attacked Hindu Businessmen for supporting the Hinduism and Hindu people during the communal troubles between Muslims and Hindus that was ongoing in Gujarat after the “Godhra” train massacre.

    GROUND TWO

    2. The Tribunal made a further jurisdictional error by its misconceived finding to the effect:-

    “Police at Mansa failed to protect the Applicant from the harm he faced because of their own corruption and greed. There is no evidence that they imputed to the Applicant political opinion or profile as a result of his stand against their corruption”. (Court Book Page 79).

    The Applicant submit that the Tribunal failed to assess that it was the Applicant’s religious activity as Hindu and the support given to other Hindus against Muslim Terrorists was the cause of all the Troubles the Applicant had.

    GROUND THREE

    3. The Tribunal made yet another jurisdictional error because of its failure “to assess whether there would be a “real chance” that the Applicant may suffer persecution once again or whether there would a threat of “serious harm” to the Applicant or his wife, if the applicant would be asked to re-locate back in another part of India.”

  6. The applicant was represented before me this afternoon by Mr Jayawardena who made submissions addressing each of the grounds identified in the amended application. 

Ground 1

  1. At the heart of the applicant’s complaint in ground 1, as I understand it, is that, in a statutory declaration provided to the Tribunal, the applicant stated that his business was attacked by “terrorists”.  The Tribunal in its consideration of the evidence before it, referred to the word “thugs”.  Mr Jayawardena contends that “thugs” has a connotation of a private abuse, whereas attacked by terrorists is capable of having a Convention nexus. 

  2. The applicant also sought to reinforcesupported that contention by having regardreferring to the applicant’s claims, as disclosed in the protection visa application.  However, in his statutory declaration, provided to the Tribunal in support of his review, the applicant specifically disavows the claims made in his protection visa application as having been a false story written by his migration adviser at the time.  The Tribunal accepted that explanation and proceeded to deal with the applicant’s claims in accordance with the statutory declaration lodged with the Tribunal and the oral evidence before it. 

  3. In the circumstances, the Tribunal was entitled to proceed with its review on the basis that the claims made in the protection visa applications were not true and were not relied upon by the applicant before the Tribunal. 

  4. Whilst I accept that the word “terrorist” may be possible of the connotation for which Mr Jayawardena has contended, such contentionattract a Convention nexus, the use of the word must be considered in the context in which it is made and the manner in which the assertion is dealt with by the applicant in his oral evidence.  In stating that his business was attacked by terrorists, the applicant stated orally, in further explanation that he was asked for money, he refused to pay, his shop was attacked, he went to the police who told him he had to pay the bribe and that if he did not pay the bribe the police would not protect him. 

  5. The Tribunal then explored with the applicant his claims and noted the exchange that took place between the Tribunal and the applicant.  There is no evidence before me, such as a transcript, to suggest that the Tribunal’s decision in any way contains any inaccuracies in its reporting of those exchanges. 

  6. The Tribunal notes that, having read the applicant’s statutory declaration, it asked the applicant to tell the Tribunal about the problems in the business and the attacks upon the business. 


    The Tribunal noted the applicant’s response that, about six months after he had opened the business in 2003, “area thugs” came by and asked him for money.  The Tribunal noted that the applicant said that, if he did not pay, he would be continued to be harassed and noted that the applicant complained about this harassment to police who, in turn, sought to demand that money from him.  The Tribunal noted the applicant’s claims that “thugs” came into his shop and pelted it with stones, stole property from him and damaged his goods. 

  7. The Tribunal noted that the applicant said that he objected to the police demands as a result of which the attacks by the “thugs” against his business and property were ignored by the police. 

  8. The Tribunal noted that it asked the applicant if there were other local businesses facing similar problems and noted the applicant’s answer that “thugs” harass many people, some of whom paid.  However, he could not afford to pay the sums demanded. 

  9. The Tribunal asked the applicant what police station he went to for help and noted the applicant’s response that he first went to the Mansa police station, where he found no assistance.  The Tribunal noted the applicant's evidence that he then went to another police station at Gandhinagar, who directed the Mansa police to attend the applicant's complaints. 

  10. The Tribunal noted the applicant's evidence that, from then on, the police from Mansa did attend his premises, howeveralthough, simply said that everything seemed all right.  The Tribunal noted that the applicant claimed that the police were still wanting payment from him before they were prepared to take his complaint seriously.

  11. The Tribunal then noted that it asked the applicant what harm he feared if he were to return to India.  The Tribunal noted, in detail, the applicant's response, including his fear that the same “thugs” that had hit him and hurt him in the past would continue to do so.

  12. The Tribunal noted that he put to the applicant that, if he fears harm from the “thugs”, he could reasonably locate to another part of India.  The Tribunal noted the applicant's response that they would ask around and be able to locate his whereabouts.

  13. It is quite clear in the disclosure by the Tribunal of the exchange between it and the applicant that the applicant had every opportunity to expand upon the harm that he feared in India.  It is also plain that the applicant's responses about the object of his fears were confined to the activities and conduct of the people who sought to extort money from his business, and whom he was interpreted as describinged as “area thugs.”, who sought to extort money from his business.  Again, there is no evidence before me that such interpretation was inaccurate.

  14. In those circumstances it was open to the Tribunal to find, as it did, that the harm that the applicant had suffered had no Convention nexus.  The Tribunal accepted that the content of the applicant's written statement and his oral evidence accurately reflected the claims the applicant wished to make.

  15. The use of the word “terrorist” by the applicant, in his statutory declaration, when taken in context, cannot be reasonably thought to go beyond the claims made by the applicant in relation to the harassment he suffered at the hands of the “area thugs”.

1.A fair reading of the decision does not disclose a claim by the applicant that he had a fear of harm from “terrorists”, because of any political opinion or perceived political opinion, or imputed opinion. 

  1. There is no evidence before me to suggest that the Tribunal's exchanges are anything other than complete and accurate.  Nowhere in the applicant’s responses or oral evidence, as referred to in the Tribunal’s decision, is there, a claim that the applicant suffered this harm because of any political opinion or imputed political opinion.

  2. Indeed, the Tribunal noted that there was no evidence that the conduct of the police, in ignoring the applicant's complaints, arose out of any political opinion or profile imputed to the applicants as a result of his stand against their corruption.  The Tribunal found that the police at Mansa failed to offer protection to the applicant, not because of any Convention related reason, but rather out of their own corruption and greed.

  3. A fair reading of the decision does not disclose a claim by the applicant that he had a fear of harm from “terrorists”, because of any political opinion or perceived political opinion, or imputed opinion. 

  4. In the circumstances, it was open to the Tribunal to find, as it did, that the harm that the applicant had suffered had no Convention nexus. 

  5. Accordingly, ground 1 is not made out.

Ground 2

  1. Ground 2 appears to be a complaint about the finding made by the Tribunal about the conduct of the police at Mansa and the motivation for their conduct in failing to take adequate steps to protect the applicant's property.  The Tribunal found that “police at Mansa failed to protect the applicant from the harm he faced because of their own corruption and greed”.

  2. The applicant's legal adviser submitted that the applicant had made no such claims or given gave any such evidence that the police failed to protect the applicant because of their own corruption and greed.  However, that statement by Mr Jayawardena ignores the fair construction of the words used by the Tribunal in context.  which The Tribunal’s use of these words plainly disclose a finding made by the Tribunal as to the reason why the police at Mansa failed to adequately protect the applicant.  That was a finding that was open to the Tribunal on the evidence and material before it, and for that reason does not disclose any error on the part of the Tribunal.

Ground 3

  1. Ground 3 is expressed by the legal representative for the applicant to allege a failure by the Tribunal to have determined whether there would be a real chance that the applicant may face execution, again, if he were to relocate to another part of India.  The legal representative for the applicant conceded that this ground was linked to the first ground and, as I understand it, conceded this ground would fall away if the first ground is not made out.

  2. In the circumstances, where the Tribunal was not satisfied that the applicant had suffered any Convention related harm, it was open to the Tribunal to conclude that there was no real chance of treatment amounting to persecution for a Convention related reason occurring in the reasonably foreseeable future.  For those reasons, the Tribunal concluded that the applicant did not have a well founded fear of persecution within the meaning of the Convention.

  3. I accept, as correct, the submission of the first respondent that, although the Tribunal put to the applicant during the hearing that he could avoid harm by relocating within India, it did not adopt that finding as part of its reasoning for rejecting the applicant's claims.  The Tribunal's finding was simply predicated on the basis that it did not accept that any harm suffered by the applicant was Conventional related. 

Conclusion

  1. In the circumstances, the Tribunal's decision is not effected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere in any application. Therefore the proceeding before this Court is dismissed.

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-one two (321) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  14 25 September 2006

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SZIBU v Minister for Immigration [2008] FMCA 116
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