SZJBN v Minister for Immigration - [2007] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 434

MIGRATION – RRT decision – Indian Hindu claiming persecution by Muslims – Tribunal found no Convention harm, available state protection, and reasonable relocation – no arguable jurisdictional error – application for judicial review dismissed for absence from final hearing – reinstatement refused.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)

First Applicant:

SZJBN

Second Applicant:

SZJBO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1968 of 2006

Judgment of:

Smith FM

Hearing date:

13 March 2007

Delivered at:

Sydney

Delivered on:

13 March 2007

REPRESENTATION

Counsel for the Applicants:

First Applicant In Person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicants’ application under r.16.05(2)(a) to set aside orders made on 8 February 2007 is refused.
The applicants must pay the first respondent’s costs in the sum of $600, in addition to the amount ordered on 8 February 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1968 of 2006

SZJBN

First Applicant

SZJBO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application seeking to set aside an order made by me on 8 February 2007, which dismissed the substantive application when there was no appearance by or on behalf of the applicants at the final hearing appointed in the matter.
The substantive application was filed on 17 July 2006 and sought judicial review of a decision of the Refugee Review Tribunal dated

29 May 2006 and handed down on 20 June 2006. The Tribunal affirmed a decision of a delegate made on 2 March 2006 refusing to grant protection visas to the applicants, who are a husband and wife. Since the refugee claims which were presented were those of the husband, I shall refer to him as “the applicant”.
The substantive application was listed before me at a first Court date on 15 August 2006, and at a show cause hearing on 17 October 2006. On both of those occasions the applicant was represented by a solicitor, Mr Jayawardena, and the applicant tells me that he was also in attendance at court. On the last of those listings, I made written orders setting the matter down for final hearing on 8 February 2007 at 2.15pm. The applicant acknowledges that he received a copy of my order, and understood its effect at the time I made it.
At the show cause hearing, an amended application was filed by Mr Jayawardena, who was at that time the applicant’s solicitor on the record. He has never filed a notice of withdrawal under r.9.03, and remains the applicant’s solicitor on the record. The Court is aware, however, that he ceased to hold a practising certificate late last year, and that he is not permitted to practise as a sole practitioner, although he may have regained a qualified certificate. Notwithstanding this, Mr Jayawardena has continued to give the applicant legal assistance. A written submission filed by the applicant on 24 January 2007, bears the appearance of having been prepared by Mr Jayawardena. I have read many such documents presented by Mr Jayawardena, and his authorship appears to be unmistakeable from its presentation, style and arguments. I also note that the applicant's affidavit in support of the present application purports to have been sworn on 27 February 2007 before Mr Jayawardena acting as “solicitor NSW”.
The applicant acknowledged in his evidence today that during the week before the hearing appointed for 8 February he received a letter from the respondent solicitors attaching their written submission and confirming the hearing date. The applicant also has conceded that when he filed the written submission on 23 January by facsimile from Griffith postshop he was aware of the hearing date. However, he did not attend, and there was no attendance on behalf of him or his wife by his past or present legal adviser. I dismissed the application under r.13.03A(c).
The present application to set aside that order was filed on 27 February 2007. It is supported by an affidavit which explains his absence:
I submit that I was working at Jerilderie about 200 kilometres away from Griffith and was harvesting the tomato crop of a large farm about 1000 hectares. As I was highly involved with the other workers to harvest the large crop within the time as requested by the company management, I entirely forgot about my final hearing. Later only I came to know that the case has been dismissed.
The applicant was cross-examined on this explanation, and maintained it. It has, in the circumstances which I have sketched above, much intrinsic implausibility, not only because of the clear and proximate personal notice which was given to the applicant as to the hearing date, but also the apparent importance of the matter to his immigration status in Australia. Another explanation might be that he decided to stay away from the hearing, because he anticipated an adverse outcome and preferred to continue earning money on the tomato farm. I note that he has not suggested that Mr Jayawardena was responsible.
On balance, I have considerable doubts whether the applicant has provided an explanation which I should accept as true, and also whether it should be regarded as sufficient to warrant the setting aside of the default order. However, if I were satisfied that he had any argument of merit in the substantive application, I may have given him the benefit of the doubt and reinstated his application. Ultimately, I have not been satisfied that he has raised grounds of merit warranting the setting aside of the dismissal, and would refuse the present application on that ground. To explain this conclusion it is necessary for me to examine the reasoning of the Tribunal.
The applicants arrived in Australia in November 2005 and soon applied for a protection visa assisted by a migration agent. Their application attached an eight‑page narrative of events explaining why the applicant claimed a fear of persecution if he returned to the country of his nationality, India. He explained that he was a "high grade caste of Hindu religion", had been very interested in Hindu culture, had joined a cultural Institution known as the VHP, had held positions in branch offices of that organisation, and had become involved in its public activities which identified him as a supporter of the Hindu religion. He claimed that over the years "the Muslim people got angry with me", and that, for example, in 2001 "Muslim community burnt my posters on roads as I only help to Hindu people" after the Gujarat earthquake. He said: “angry crowd of Muslim people disturb me everywhere and harass me by stopping me on roads and throwing stone on my car”. He continued:
14.After this matter all of the Muslim community people were counting me as their enemy. And they felt that I was adamantly inclined Hindu and I did lots of help to Hindu community. As I was famous person among different communities and everyone recognised me very easily and that created problem for me. Muslim religious people hated me. Each and everywhere I had a problem of discrimination.
Once I was passing from the area, (place), of Muslim locality and some of them identified me and stopped me and within a couple of minutes many Muslims surrounded me. That was the terrified moment of my life; I was bashed very badly at the time. Somehow I succeeded to run away from there.
15.I went to (place) which is located central part of India to attend charity show organized by VHP. Over there some Muslim people kept an eye on me. I immediately called to some of VHP colleagues and we change the hotel. Even there I felt the situation of fear. I left every work there and book the ticket for Ahmedabad immediately and I passed the whole day and the night in my colleague’s home. In the morning, I took the taxi to hotel to collect my luggage. During the way, taxi was forced to stop by crowd of unknown Muslim people and they bashed me up violently then ran away after that. While they were beating me they shouted “we wont allow you to stay at rest and we will kill each and every adamantly inclined Hind.” I was badly hurt and blood was coming from my body
Some of good pedestrians helped me to get seat beside the main road and gave me water. After that I gave some contact numbers of my colleagues to them and they called them so they all came immediately and admitted me to hospital. As a result of treatment I went to deep sleep for 3-4 hours and during that time my colleagues went to police station to complain about the matter but police could not do anything as there were no names on which we could file the case because we did not have any names but the whole Muslim community. I just wanted to go home after that matter. My VHP colleagues helped me to reach Ahmeadabad in their personal car and I reached home safely.
16.Then I decided to complain in police station. The police officer asked me who harassed me. I replied that I wanted to file a case against Muslim community. But the police officer told that how could they accept the claim against whole community and it was not possible to forfeit the matter but just to save my life they provided police protection for 3 days only. This protection was only for working hour time. But after that they denied to give more protection by saying that problem was against the whole Muslim community which was spread all over India. I had to go all over India for the purpose of business and as well as for VHP and RSS related work and police department denied to help in other states than Gujarat.
I became confused I thought that if my police department and court and ultimately government could not provide any help then who would help me. I could not find any other way that time and I had to continue with my life in risk all the time.
I opened up this matter with my superiors in VHP and RSS. They said that those matters were very much popular. It was the matter against whole Muslim community and it was not related to court and police department but it was a matter of religious and political issue. They could not do much better at this moment because of political environment involved which was not in their side. So they would think later on. They said.
The applicant claimed a later incident in 2002, after he supported Hindu people following the Godhra train incident. He said:
Some Muslim people surrounded my home and threw stones and also tried to kill me. Fortunately, police came immediately and all people ran away.
He said, shortly after this incident, his wife was pushed off her bicycle in a crowd and he blamed Muslim people for her injuries. He said he was unable to get protection from police who said:
“that they could not register complaint against whole Muslim community and I was asked to go to Court. I did accordingly and court said that they could not take any further action to whole community. In the end I asked for protection but court ordered to police department to provide two week police protection. Court gave me final decision that “even we do not have any right to proceed to whole community and no one can dump the rule which involves taking action against whole community. Though your problem is genuine we can not punish whole Muslim community.”
The applicant said that he then kept his “activities related my religion in silent mode” and concentrated on his export business, which apparently proceeded successfully, involving trips overseas. But, while he was in the USA in January 2004:
It has come to my notice that Muslim community people came to my warehouse and they burnt it along with the stock. I was very shocked to hear that. I had decided to move away from the Muslim community and purchase new one very far located in Hindu area.
He said he found a new warehouse and purchased it in August 2004. However, he said that his paintings were published in 2005, which caused him to become “famous ever” and this caused the “whole Muslim community became very aggressive and each and every single Muslim wanted to kill me anyhow”. The applicant claimed to have complained to the police who said they could not protect him from the whole Muslim community. He said this caused him to become dejected and his parents suggested that he should come to Australia “to save our life from the Muslim community”.
Supporting documents were presented to show the applicant's import business, but no documents supporting his claims of persecution by Muslim people were ever presented to the Department or the Tribunal other than some medical records in relation to treatments in 2002.
The applicant attended a hearing on 12 May 2006 conducted by the Tribunal. The transcript has not been presented by the applicant, but the Tribunal gave a description in its statement of reasons, in which it explored all of his claims and appears to have put to the applicant issues of concern to it. The Tribunal gave the applicant an opportunity after the hearing to present further documents in support of his claims, but he did not do that.
Under the heading “Findings and Reasons” the Tribunal said:
The Tribunal has a number of concerns about the applicant's claims. The Tribunal found some of the central claims to be exaggerated and very general, raising doubts about their veracity.
The Tribunal regarded as “simply far-fetched for the applicant to contend that all Muslims in India are after him or that an ill-defined Muslim community has caused him harm”. It explained that conclusion, and an opinion that “the applicant has exaggerated and/or fabricated the alleged harm he had suffered”. It said that it also addressed whether a portion of the Muslim community had targeted the applicant. It considered the applicant's evidence about his VHP membership and activities, and found problems in his evidence. It regarded him as “prone to exaggeration”, but it said it gave him the benefit of the doubt “on the basis that the applicant was a member of and later became branch president of VHP” and “was involved in activities relating to VHP”.
However, the Tribunal was not satisfied that any portion of the Muslim community expressed anger about the applicant in relation to his involvement in the temple reconstruction in 2000. It was not satisfied that he suffered harm as a result of his involvement in a train accident in 2002, nor that Muslims had surrounded his home and threw stones and tried to kill him at that time. It was satisfied that the applicant's wife had been taken to hospital following an accident in May 2002, but was not satisfied “that she was pushed by Muslims who tried to kill her, or that this was anything else other than an accident”.
The Tribunal was not satisfied that circulation of prints of one of the applicant's paintings resulted in the Muslim community becoming aggressive and wanting to kill him, nor that he angered the Muslim community by helping Hindus. In relation to one of his assaults, which was supported by some medical evidence, the Tribunal said:
The Tribunal is satisfied that the applicant was assaulted once in (place) and once in (place). However, on the basis of the available information and in consideration of the evidence as a whole, including the medical reports provided, the Tribunal is not satisfied that the culprits were Muslims, nor is the Tribunal satisfied that the applicant’s Hindu ethnicity or political and or social activities were the essential and significant reasons for the assaults. In any event, the Tribunal is satisfied that when he reported the (first place) incident to the police and as he was not able to identify the offenders, the police acted adequately and appropriately. Similarly, the Tribunal is satisfied that when he and his colleagues reported the (second place) incident to the police and as he was not able to identify the offenders, the police acted appropriately and adequately.
The Tribunal said that it was satisfied that the applicant had encouraged people to vote for BJP candidates, but was not satisfied that he had suffered any harm on the basis of that support. The Tribunal made a concluding finding:
In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm, or that any harm he faced was essentially and significantly related to a Convention reason. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any persecution as contemplated by the Convention or that there is a real chance that he would suffer such persecution in the reasonably foreseeable future.
The Tribunal also found that, even if the applicant had suffered some harm, it was satisfied that it was inflicted by “non-state agents”, and it made findings based on independent country information concerning the situation of law enforcement of India, that “the applicant would be able to obtain state protection that would accord with international standards, for any harm that he fears”. The Tribunal considered the applicant's complaints about the previous responses of the police but was not satisfied that they revealed inappropriate responses.
The Tribunal also made a finding:
The Tribunal is also satisfied that the applicant could reasonably relocate to other parts of India, as for reasons explained above, the Tribunal is not satisfied that the whole Muslim community is after the applicant.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution as contemplated by the Convention.
I have considered the Tribunal's reasoning and its procedures, and consider that the former was open to it on the material and the latter do not show any departure from procedures required by law. I am unable to identify any arguable ground of jurisdictional error which has any prospects of success if I were to reinstate the application.
The applicant's amended application has two grounds. The first ground is:
That the Tribunal failed to assess the applicant's “fears of harm” suffered according to refugee criteria and misapplied the applicant's claims.
The subsequent particulars of this argument are obscure. It involves a patent misreading of the Tribunal's reasons, by wrongly suggesting that the Tribunal applied to the applicant-husband a finding that “no specific Convention claims were made by or on behalf of the applicant”. However, it is plain that this finding expressly referred to “the other applicant”, meaning the applicant's wife, and it correctly identified that she made no separate refugee claims.
After considering the particulars provided in the application, and the purported elaboration of this ground in the applicant's written submission, I do not consider that they have raised any argument of substance. I consider that, at most, the arguments may go to the merits of the factual assessments reached by the Tribunal.
Ground 2 alleges that:
The Tribunal misconstrued the law relating to status of refugee under the 1951 UN Convention.
The written submission suggests that this is shown, because the Tribunal:
failed to use the full criteria in article 1A(2). Namely race, religion, nationality, membership of a social group or political opinion as a whole for assessing the applicant's claims. The Tribunal obviously missed “religion” and “nationality”, two of the most important criteria in the article which was surprising.
However, I do not consider that it is reasonably arguable that the Tribunal made any such error. The applicant's refugee claims were presented to the Tribunal plainly on the basis of his religious opinions, and there is no doubt that the Tribunal appreciated this.

The findings of the Tribunal indicated that at some points it was not satisfied as to his claimed history of harms at all, and at other points it was not satisfied as to the claimed motives for other harms suffered by the applicant and his wife. Ultimately, the Tribunal made a finding which addressed all of his claims: that it was not satisfied “that any harm he faced was essentially and significantly related to a Convention reason” (c.f. s.91R(1)(a) of the Migration Act).
I do not consider that this reasoning shows any misapprehension of law on the part of the Tribunal. Moreover, the Tribunal also made alternative and independent findings: that the applicant had available acceptable levels of state protection; and that he could reasonably relocate to other parts of India where he was less well known.
I do not consider that it is reasonably arguable, as in the written submission, that the Tribunal “either misconstrued or misunderstood the applicant's claims”.
I have considered all the arguments presented by the applicant to the Court, and can see no reasonable prospect that they would succeed if I reinstated the matter for another final hearing. In those circumstances, and taking into account my doubts as to the applicant's explanation for his absence from the appointed final hearing, I consider it is an appropriate exercise of discretion for me to refuse the present application to set aside my dismissal of the substantive application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 3 April 2007