SZJEV v Minister for Immigration - [2007] FMCA 1354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEV v MINISTER FOR IMMIGRATION

[2007] FMCA 1354

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.91R

Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
SZDJQ v Minister for Immigration & Multicultural Affairs [2006] FCA 533

Applicant:

SZJEV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2215 of 2006

Judgment of:

Barnes FM

Hearing date:

2 August 2007

Delivered at:

Sydney

Delivered on:

2 August 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr S. Free

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2215 of 2006

SZJEV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in December 2005 and applied for a protection visa in February 2006. The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing.
In essence, the applicant claimed to have a well-founded fear of persecution in India, largely arising out of his claims of ongoing harassment by a rival shop owner, a Mr Khan, who was said to be a Muslim with ties to the Congress Party as well as by local police who were said to have acted at the direction of Mr Khan. The applicant claimed that his father had owned and operated a fruit and vegetable shop in Mumbai and sold fruit to other shops at a low price. He claimed that Mr Khan opened a shop next door, disliked the father’s business and his sale of fruit at low prices (in particular to RSS groups) and had complained to the police, that his father had been falsely charged and tortured by the police. In response the family had had a member of the Shiv Sena Party warn Mr Khan and the Congress Party.
The applicant claimed that subsequently, in February 1996, he and his father had been attacked by Mr Khan and six or seven Congress Party members and that his father had been killed as a result of injuries sustained in the attack. The applicant had been hospitalised. He claimed that thereafter he had been interrogated and beaten, that false cases had been filed against him and that he and his brother had been gaoled. When released he had returned to his studies and his brother to the business. He claimed that the police regularly checked on him at his workplace and that he was told to report to the local police station. On the advice of his family he moved to Bangalore. He claimed that he had language problems. In Delhi he could not find a job and was forced to return to Mumbai.
He also claimed that during communal clashes between Hindus and Muslims at a festival in Mumbai he was helping Shiv Sena and he and other members of the party were arrested and detained. He was released after a week. He claimed that his enemies tried to kill him and that he feared being killed by the authorities or the Congress Party.
The Tribunal recorded that in the hearing the applicant stated that he and his father had been attacked in 1996 because Mr Khan disliked the business for selling fruit at a cheap price. He elaborated on his claims in relation to subsequent events including his claims to have been arrested in 2004 during festival celebrations. He acknowledged that he had been involved in clashes, but claimed that he only urged people to “calm down”. The Tribunal also recorded its questions of the applicant and his responses in relation to the issue of whether he could relocate, either within Mumbai or elsewhere in India.
In its reasons for decision, after setting out independent country information in relation to matters such as religious freedom in India, the situation in the applicant’s home state, the position of Shiv Sena and the RSS and government approaches to organised crime and extortion, the Tribunal concluded in essence that it was not satisfied that the applicant had a well-founded fear of persecution because it was not satisfied that the harm and harassment directed at him and his family by Mr Kahn, his men and the local police was essentially and significantly for a Convention reason.
In reaching this conclusion the Tribunal first noted that there were discrepancies between the applicant’s claims in his protection visa application and the oral evidence he gave at the hearing. However it stated that it did not draw any adverse inference from such inconsistencies and was prepared to rely on the applicant’s oral evidence in assessing his claims. It noted that such claims were based on political opinion and religion and related to the applicant’s fears of the rival Muslim shop owner with Congress Party ties and that it was claimed that the local police had collaborated with this man in relation to false charges and detention of the applicant in the past.
The Tribunal accepted the applicant’s factual claims as to what had occurred in the past, including his claim that he and his father had been attacked, that the local police, acting corruptly, falsely charged and detained him and his brother and that he was subject to verbal abuse and threats. However it did not accept that these incidents had occurred essentially and significantly for a Convention reason. It had regard to the fact that at the hearing the applicant had repeatedly said that the reason behind Mr Khan’s hatred for him and his father was their practice of selling fruit at a cheaper price and the consequential financial loss to Mr Khan’s business.
Beyond this, the Tribunal found that the applicant could not provide a satisfactory explanation for the past events. While he referred to his Shiv Sena association and Hindu religion the Tribunal could not be satisfied that the applicant’s political affiliation or religion were the reasons behind Mr Khan’s animosity. In that respect the Tribunal had regard to the fact that the applicant became a member of Shiv Sena in 2003, which was some six years after Mr Khan’s assault on the business, to the limited nature of his claimed activities relating to Shiv Sena and to the absence of independent evidence indicating that members and activists of Shiv Sena were generally targeted by Congress Party activists.
The Tribunal found nothing in the applicant’s evidence to justify politically-motivated hatred towards him by Congress Party and its active members including Mr Khan or to suggest that he was being harassed by his business rival because of his religion. It had regard to the situation of neighbouring Hindus who he had said were not harmed or harassed. It accepted that his evidence clearly suggested that in harassing and detaining him the local police were acting corruptly on Mr Khan’s orders, being motivated by financial gain and not by the applicant’s political opinion, religion or any other reason. Hence, it could not be satisfied that the harm and harassment in issue was essentially and significantly for a Convention reason.
The Tribunal went on to find that even if it were to accept that there was a Convention-related motivation for Mr Khan’s harassment and harm to the applicant, it was satisfied that the applicant could avoid further harm at the hands of his local opponents by relocating to a different part of India. In reaching that conclusion it had regard to the applicant’s evidence that his problems and activities were highly localised. It found that he had provided no acceptable reason as to why he was unable to relocate within India. It had regard to the applicant’s evidence of his activities, profile and experience and did not accept as credible or plausible that personal animosity that may have arisen out of his encounters with local Muslims or Congress Party activities in suburban Mumbai was so deep that it would propel his opponents to hunt and find him anywhere in India.
The Tribunal did not accept as credible that the applicant would be targeted by the Congress Party or Muslims simply because of his or his father’s membership of Shiv Sena or simply because he was Hindu. Having regard to independent information in relation to the situation in India the Tribunal was satisfied that if the applicant relocated particularly to a state where Hindi-speaking Hindus were in the majority and the BJP was in power, there was no real chance he would face harm by Congress Party members or Muslims. It found no evidence to suggest he would be denied state protection for reasons of police complicity, corruption or bias.
The Tribunal had regard to the particular attributes of the applicant, his education and relative degree of skills. It addressed his claims that in the past he had attempted to relocate to Delhi, but had difficulty in finding a job. It noted the limited time that he was there and that he did not claim, and there was no evidence to suggest, that he would not be able to or would be prevented from earning a living. It also had regard to his language abilities in Hindu, Sindhu and English and was satisfied that it was reasonable for him to relocate to a different part of India.
Finally, the Tribunal addressed the applicant’s claims about the events of 2004 when he was arrested and detained. It found that the applicant’s evidence suggested, and it was of the view, that he was arrested for being involved in a spontaneous communal scuffle and that this was not systematic and discriminatory conduct. It was not satisfied that the fact that the groups of Muslims and Hindus released were not all released at the same time was necessarily indicative of police bias towards Muslims. It found it reasonable to assume that the police had acted appropriately. In any event, the Tribunal found that if the applicant was fearful of Muslims in his locality or corrupt police in the particular part of Mumbai from which he came showing bias in favour of Muslims, it was reasonable for him to relocate to a different part of India.
Hence it was satisfied that the applicant’s fear of persecution for a Convention reason was not well founded and that the applicant was not a refugee.
The applicant sought review by application filed in this Court on 11 October 2006. He did not file written submissions. The application contains three grounds but the first is in fact a statement of receipt of the Tribunal decision. The first substantive ground is that the Tribunal did not take into account “all the relevant information” when making its decision. No particulars are provided of this ground, and when given the opportunity the applicant did not elaborate on this ground in oral submissions.
On the face of the material before the Court, including the claims made by the applicant in connection with his protection visa application and to the Tribunal, there is no factual basis for a contention that the Tribunal failed to take into account all relevant information in the sense of integers of the applicant’s claims. Nor is there any indication that the applicant put particular items of information or material before the Tribunal, relevant to the issues to be decided, which the Tribunal failed to take into account.
In oral submissions, the applicant suggested that justice had not been done because the Tribunal had asked him to produce evidence in support of his claims, that it was difficult for him to obtain information from India, that he had tried to do so and had been unable to and that no-one had helped him. However such claims do not establish a jurisdictional error on the part of the Tribunal. The Tribunal is not, in circumstances such as this, under an obligation to make inquiries or obtain further information. There is nothing in the material before the Court to suggest, nor was it claimed, that the Tribunal was either asked or undertook to obtain further information or, indeed, to suggest that the applicant sought and that the Tribunal did not consider any request by him to provide further information.
It is for an applicant to put his claims before the Tribunal. If the Tribunal is unable to satisfy itself on the material that is put before it that an applicant for review has a well-founded fear of persecution for a Convention reason it is under no obligation to make further inquiries of its own to address shortcomings in the application (see MIMIAvVSAF of 2003 [2005] FCAFC 73 at [20]-[24] and cases cited therein, particularly at [20]). Insofar as the applicant intends to suggest that the Tribunal failed to give sufficient weight to the information which the applicant said was in support of his claims, such a contention seeks merits review which is not available in this Court.
The next ground in the application is that the Tribunal’s decision is “totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.” Reference is made to The Law of Refugee Status, James Hathaway, 1991, Butterworths, Canada. It is contended that “contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seemed to have done just that”. The application continues, although it is not clear whether this statement relates to this ground or is a more general claim, “The applicant feels that the Tribunal did not give weight to the statements made by him in particular harassment (sic)”.
As indicated above, the Tribunal accepted the factual claims made by the applicant as to the events which he said had occurred involving Mr Khan and the police. It did not rely on discrepancies between the applicant’s written and oral evidence, giving him the benefit of the doubt and indicating that it would rely on his oral evidence. The primary reason for the Tribunal’s conclusion that the applicant was not a refugee was not that it disbelieved the applicant’s claims but that it was not satisfied, on the basis of those claims, that the persecution that the applicant feared was essentially and significantly for a Convention reason.
In relation to the claims about the events of 2004, it is apparent from the Tribunal’s conclusion that the applicant’s arrest and detention was not regarded as systematic and discriminatory conduct, that the Tribunal was of the view that the events complained of did not constitute persecution in the sense specified in s.91R(1) of the Migration Act 1958 (Cth).
In other words, the Tribunal considered the applicant’s claims in relation to particular harassment or other events in the past, but did not fail to give weight, in any relevant sense, to his statements, accepting that the events complained of had occurred, but not that that gave rise to a well-founded fear of persecution for a Convention reason.
The Tribunal did not accept the applicant’s view that he could not relocate within India because the Tribunal was satisfied on the material before it that it was reasonable for the applicant to relocate to a different part of India. While it did not accept as credible or plausible that any personal animosity against the applicant was such that it would propel his opponents to seek him throughout India, it did not reach that decision by failing to consider the applicant’s claims, but rather based on a number of factors including independent country information in relation to the situation in India. It addressed the evidence and issues raised by the applicant in this respect. No jurisdictional error is established on the basis contended for in the application.
Counsel for the first respondent also addressed the issue of whether there was any jurisdictional error otherwise apparent in the reasoning of the Tribunal, as well as the applicant’s oral submissions in relation to his claims that justice had not been done because he was not able to provide further information.
As indicated above the fact that the applicant found himself unable to provide documentary evidence in support of his claims is not such as to establish jurisdictional error on the part of the Tribunal. The decision did not in fact turn on a lack of factual evidence that the applicant may have been expected to provide.
Further, as contended for the first respondent, the Tribunal properly considered whether the applicant had a well-founded fear of persecution for a Convention reason that was the essential and significant reason for the persecution, as required by s.91R(1)(a). It addressed the correct question having regard to the Convention bases raised on the material before it of political and/or religious reasons. However, based on its consideration of the facts, including the timing of the events and country information in relation to the situation in India, the Tribunal concluded that the harm and harassment directed at the applicant and his family by his neighbour, his men and the local police, was not such that it could be satisfied that it was essentially and significantly for a Convention reason. It was in those circumstances that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason, (see SZDJQ v MIMA [2006] FCA 533 at [38]) and no jurisdictional error is apparent in this respect.
Furthermore, there was an alternative basis for the Tribunal’s decision in which no jurisdictional error is demonstrated or apparent, that being the Tribunal’s finding that it was reasonable for the applicant to relocate to a different part of India. The Tribunal properly considered whether the applicant could reasonably relocate and hence successfully avoid any threat of persecution. In considering whether it was reasonable to expect the applicant to relocate it considered the claims made by the applicant as set out in the Tribunal’s reasons for decision, the obstacles to relocation suggested by the applicant and the practical realities in light of the applicant’s particular attributes and the situation in question, consistent with the requirements of Randhawa v MILGEA (1994) 52 FCR 437.
As no jurisdictional error has been established the application must be dismissed. The applicant has been unsuccessful. It is appropriate that he meet the costs of the first respondent. The first respondent seeks costs in the sum of $3,750, which is at the lower end of the scale of costs ordered in matters of this nature. I consider it appropriate in light of the nature of this and other similar matters.

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

Associate:

Date: 14 August 2007