SZJMS v Minister for Immigration - [2007] FMCA 58

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 58

MIGRATION – RRT decision – Indian seeking temporary refuge from persecution by business associate – Tribunal found no Convention nexus – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476

Applicant:

SZJMS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2931 of 2006

Judgment of:

Smith FM

Hearing date:

16 January 2007

Delivered at:

Sydney

Delivered on:

16 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms G Broderick

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2931 of 2006

SZJMS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 11 October 2006 in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 August 2006 and handed down on 19 September 2006. The Tribunal affirmed a decision of a delegate made on 5 May 2006, refusing to grant the applicant a protection visa.
The application was returnable before me at a first court date on 1 November 2006. The applicant attended, and had the assistance of an interpreter, although I note that he also speaks English quite well. The nature of the proceedings was explained to him by me and in an information sheet, and I gave him until 21 December 2006 to file an amended application and any additional evidence after receiving a bundle of relevant documents. The applicant was offered, but declined, the opportunity to be referred for free legal advice under the New South Wales RRT Legal Advice Scheme. I warned him that his application might be dismissed today, if it did not raise an arguable case for the relief claimed.
He did not file any further document, and relied only on his original application which I shall address below.
The applicant lodged his application for a protection visa on 28 March 2006 shortly after arriving in Australia. A statement of some length explained his personal background and why he sought refuge in Australia against return to his country of nationality, India. Although his claims were not corroborated, he explained them at greater length to the Tribunal when he attended a hearing on 16 August 2006, and it accepted his history. Indeed, the Tribunal appears to have felt sympathy towards the applicant’s claims which he apparently presented to the Tribunal, as he has to this Court, in a frank and honest way.
The applicant explained to the Tribunal that he sought temporary refuge in Australia until a situation in India, which he described, improved for himself and his family. The situation had developed in 2005 after he commenced a debt recovery business with a prominent member of the local community in his city who was a supporter of the BJP. The applicant was occupied in the office, and the business associate provided staff to effect the recoveries. He told the Tribunal:
After the family business divided he was approached by a prominent member of the community with a proposal that he join him in running a collection agency funded by this person. The collection agency was set up to secure the repayment of debts to banks and other financial organisations. The agency earned a very good profit through commissions on the repayments of the debts, however, the methods used to enforce repayments included threats of violence and torture. The applicant was not happy to be involved in this type of business so he resigned from the business and went back to his family business. His business associate tried to persuade him to continue in the business however the applicant told him that the work did not suit him. His business associate was not happy with the situation and after about one month went to the applicant’s home and demanded that he return to work in the business. The applicant refused and continued to work with his brother in the family business and also returned to his community work.
His business associate became very angry and started harassing the applicant at home and threatening him and other family members on the telephone. He wanted the applicant to repay the amount of 7 lakhs (700,000 rupees).
One day in December 2005/ January 2006 the applicant spoke angrily to his former business associate because he had harassed family members of the applicant. The former associate then sent some people to the applicant’s home and they asked for the applicant. They threatened the applicant and told him they would take action against his property if he did not repay the amount owed to his former associate. A few days later they returned and bashed the applicant and injured one of his eyes. They smashed a television set and tore off his marriage necklace. His family became very worried about the threats made against them so the applicant went to his former associate’s office to complain however his associate assaulted him. The applicant became very worried about his wife’s safety so he went to the police and told them what had happened.
He claimed that the police took no action against the partner because he was a prominent member of the local community and a supporter of the BJP (Bharitaya Janata Party). Following his complaint to police the former associate sent more people to the applicant’s home where they made threats of violence against his family and smashed furniture. The applicant felt that he had put his family into an unsafe situation so he left the house and went to stay with a friend for a few days. After his friend found out what had happened he did not want the applicant to stay in his home because he did not want to get involved.
The applicant said that he attempted to relocate with his family in Mumbai, and then lived in other cities, but he claimed his associate located him and repeated threats. The applicant confirmed that he had made only one attempt to get the assistance of the police.
In his history, the applicant also referred to his previously having worked with the Congress Party as a voluntary worker, and also to his religion as a Muslim.
In a carefully considered decision, the Tribunal accepted the applicant’s history in relation to the threats and harassment of his former business associate, but it concluded:
I do not, however, accept the harm or threats of harm were Convention related. The harm feared by the applicant arose from a business dispute between the applicant and his former business associate and is not related to the political activities of either the applicant or his business associate. I find that the applicant’s former business associate and his employees threatened and harmed the applicant because the applicant ended his association with a debt collection agency that the applicant and his former business associate had operated prior to December 2005.
The applicant has suffered harm from his business associate and fears further harm however the harm feared is criminal conduct on the part of his former business associate and employees. I do not accept that the applicant has been targeted for harm because of his political opinion, his business associate’s political opinion or for any other Convention reason.
The Tribunal then considered whether a Convention nexus could be provided by reason of the withholding of State protection “for a Convention based reason”. It assessed the applicant’s evidence about his complaints to the police, and said:
The applicant claimed in writing that he had complained to police on a number of occasions and had sought the assistance of higher ranking police officers. At hearing the evidence he gave indicated that he had only complained on one occasion to local police and that as higher ranking police were located in the same local police station to which he had made his original complaint there was no point in seeking assistance from higher ranking officers.
The Tribunal accepted that he had complained of mistreatment on one occasion to the local police, and that his evidence “suggests that the local police were reluctant to take action against a person in the community who had some local prominence and influence”. However, it said “there is no evidence given by the applicant or in the country information which indicates that this conduct is Convention related or systematic in nature”. It considered country information, and concluded:
There is nothing before me and I do not accept that a reasonable level of state protection would be withheld from the applicant for any Convention based reason.
The Tribunal also addressed whether the applicant’s religion or his past history with the Congress Party could provide a nexus. It concluded that his religion was not “a factor in his fears of harm or in his perception that the police will not provide him with protection”, and noted that the applicant made no claims in relation to his past association with the Congress Party.
The Tribunal’s conclusion was:
As I do not accept that the harm feared by the applicant is Convention related and I do not accept that state protection would be withheld for any Convention based reason I do not accept that the applicant has a well founded fear of persecution within the meaning of the Convention.
The Tribunal went on to consider whether the applicant could, in any event, avoid risk by relocating within India.
I have carefully considered the Tribunal’s reasoning, and can see no arguable ground of jurisdictional error affecting its procedures or decision.
The applicant’s application has as its grounds:
1.Protection for certain time (temporary).
2.Present tension during my stay in India is same.
3.Condition to my family is same as before but my family is seeking certain help for me so I can come back.
Plainly, these do not even seek to identify jurisdictional error, but only confirm the applicant’s desire for a temporary refuge in Australia.
The applicant, in his oral submissions to me today, made similar statements.
Notwithstanding my sympathy for the applicant, and his refreshing honesty, I do not consider that his application raises an arguable case for the relief claimed, and I do not consider it appropriate to allow it to continue purely for the purpose of giving him further time in the country. I consider that it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 January 2007