SZJNO v Minister for Immigration
[2007] FMCA 1148
•11 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNO &ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1148 |
| MIGRATION – RRT decision – Indian national attacked by BJP supporters after making donation to Congress Party – Tribunal found reasonable State protection available – no jurisdictional error found. |
| Migration Act 1958 (Cth), s.476 |
Minister of Immigration v Al-Miahi (2001) FCA 744
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1
| First Applicant: | SZJNO |
| Second Applicant: | SZJNP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3001 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 11 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3001 of 2006
| SZJNO |
First Applicant
| SZJNP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 17 October 2006, which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 September 2006 and handed down on 28 September 2006. The Tribunal affirmed the decision of a delegate made on 15 August 2003, refusing to grant protection visas to the applicants. The applicants are a husband and wife, but the wife did not make separate refugee claims. As did the Tribunal, I shall refer to the applicant husband as “the applicant”.
The delay between the decision of the delegate and the Tribunal's decision is accounted for by an earlier decision of the Tribunal, which was set aside by consent order in this Court on 20 April 2006. Neither the decision of the first Tribunal nor the reasons for the remitter are shown in the material before me.
The applicants arrived in Australia in May 2003, and lodged an application for a protection visa on 24 June 2003. Their application showed that they were assisted by a person who was not a migration agent. In response to a question asking why he left India and sought protection in Australia, the applicant said:
Because of political pressure and hardship I and my family were fleeing from the political parties, I have to leave the country.
In answer to the question, “What do you fear may happen to you if you go back to that country?”, the applicant said:
As I was against that political party for many reasons, I have received so many phone calls about threatening us. If I will go back they might try to harm my family and that may be at the cost of my family.
No greater details or substance to these claims was provided elsewhere in the application, and no material in support was provided to the Department. The delegate refused the application, pointing out that:
The applicant had provided no details whatsoever of ever suffering any harm or mistreatment in India of sufficient gravity as to constitute persecution in terms of the Convention.
Before the Tribunal, the applicant attended a hearing held by the first Tribunal on 7 January 2004. A transcript of that hearing is not in evidence, but the second Tribunal extracted a description of that hearing into its reasons.
The applicant then attended a second hearing held by the reconstituted Tribunal on 9 August 2006. He presented two documents to both Tribunals. One was a purported receipt issued by a regional Congress Party Committee, dated 21 November 2002 which recorded a “contribution given to the (location) Congress Committee for the Legislative Assembly election” in the amount of 40,000 rupees. The second document, as translated, was a copy of a letter from the applicant addressed to the “Honourable Police Inspector” at a local police station in Ahmedabad, dated 4 December 2002. This was headed “Subject: For Obtaining the Police Protection". The letter said:
This is in reference to the last date 23.11.2002. On this day, my shop that is situated, well-known, and enroutes between the High court building and a crossing, called (name), where elements of illegal encroachments of sentimental people, 10 -12 in number confronted me – and because I give donation to congress party, objected as to why I donate and support them – And why because those who are courteous and polite members, partial to royal affairs, have favoured (Bharat Janta Party) members, who also have favoured and pressurised for the membership shares. And if I do not do all that, than he said he can harm him personally or materially. This was kind of warning been given to me.
Thereafter, on 28.11.2002 in the morning, as I reached my shop between 10 and 10:15am, they were standing before my shop. As I opened my shop, they started abusing me, entered my shop and broke all the jars and other things and on top of that said ‘we’ll come in the evening again at 5:30 to collect money and this I complained in station but no steps were taken and so, I did not go to the shop that evening because I was scared, but they blamed and produced an issue of fighting and abuse and created lots of harassment.
After that, yesterday on 31.12.2002, same group of people came up and gave me punches and said if our party wins election, then your business would be shut forever. There are our people in parliament, police department and so nobody can harm us at all. This is why, its my humble request to give me police protection or else they will me and due to that warning, otherwise I’ll have to leave this city (country) with my family. I do not recognise these people but I can strongly say that they have support from the government party and they belong to that party.
According to above mentioned, I once again, very humbly request for a police protection and a quick step regarding my protection to be taken.
According to the description of the hearing held by the first Tribunal, the applicant gave the following account of his complaint to the police:
The applicant claimed that, on 4 December, he made a written complaint to the police which they agreed to stamp as proof of his complaint. He produced at the hearing a copy of a letter of complaint which he said he had written to the police. He submitted the original of the document after the hearing. It bears what purports to be the stamp of the applicant’s local police station. The applicant said that his family had only just located this document as well. I asked him why the police had agreed to stamp his letter of complaint as proof that he had made the complaint when previously they had refused him any help. He said that they were obliged to stamp it when he explained that he might need it for proof later on, including in a court. I put it to him that it was difficult to believe, given his claim that they would not help him, that the police would help him by, in effect, giving him proof of their inaction. In reply he said the police had told him they need the names of the persons who attacked him before they could do anything and, on that basis, they agreed to stamp his letter as proof of his complaint.
A transcript of the second hearing held by the reconstituted Tribunal is in evidence. At the start of the hearing, in answer to the general question by the Tribunal “Can you tell me why you fear returning to India?”, the applicant referred to a fear that “those people will be killed me or anything can be deal with me”. He then identified “those people”, as “the BJP people”, “the BJP volunteers” and “BJP employees”. The Tribunal, constituted by Ms Nicholls, asked him “Who particularly are we talking about?” the applicant then said:
The Interpreter: Where I’m running my business in that area people.
Ms Nicholls: Do you know their names?
The Interpreter: No, I didn’t know them particularly as their names because they always came at my shop in a crowd and every time the new members or the old members, I can’t – I can’t recognise who are the old ones, who are the new ones.
Ms Nicholls: When you say they came as a crowd, can you tell me what has happened to you to make you fear this group of people?
The Interpreter: I was to give donation to a congress party and their demand for that and that one that you give me donation as well and which I just refused their suggestion and after that I have been tried to complain against them in the police and due to that reason they are in opposite with me and previously they told me that if you are going against us and police then we will kill you.
The Tribunal then said “I guess that's a summary of what has happened. Can you be a little bit more detailed?” The applicant then narrated events in 2001, where BJP volunteers and members came to his shop during the Diwali Festival and demanded gifts from his stock “for higher post members, like president and everything.” He said after he refused, “they damaged his stock and threatened to beat him.”
The applicant said that in the following year, 2002, “they did the same thing” especially on festival days. He told the Tribunal:
This time they are very serious about that and they are asking very powerfully and after that election also will be held and during those times they just get the news I have already given donation to the Congress and I was giving the donation before the election so they demand that you are not giving me goods or not giving me money and after those things they start to harass all the time and after that there was attack on me.
The applicant described to the Tribunal an incident where they threw stock onto the road, broke the glass of the shop and made further demands for money. He also described a personal attack and his complaint to the police:
Ms Nicholls: So they hit – they hit you, what did they hit you with?
The Interpreter: Just with – they are kick me and hit me, punching me.
Ms Nicholls: And threw you on the floor?
The Interpreter: Yes, they all eight to ten people are there and hit me.
Ms Nicholls: And they damaged the shop?
The Interpreter: Yes, they damage my shop little bit but the main target was me so they hit me more.
Ms Nicholls: And then what happened?
The Interpreter: And after that I will try to put my written complaint in the police which I was submitted here.
Ms Nicholls: Did you, after you were attacked what did you do then?
The Interpreter: And after that I just stopped to go to my shop.
Ms Nicholls: Did you go home or did you go to the doctor or the police?
The Interpreter: First I was get – going to the hospital then going to police station as an oral complaint but they are not ready to take my oral complaint and next day I will try to give the written complaint and in the written complaint I just give that all the stuff which happen to me which I have been given to them and I just request them that you please receive this my application and give me proof that you have accepted this and also they are just ignore me as well but when I request them more and after that they receive my application and give me a stamp on my second application as a proof that they received but after that, all the stuff they didn’t take the action against them or on that application and the police person said me that you go and take the names of the person who was attack on you and everything and they are all BJP volunteers and that stuff so I did not identify their names and everything and every time police didn’t hear me or didn’t take action against any of my complaints.
Ms Nicholls: Did you – you couldn’t identify the BJP volunteers?
The Interpreter: As face to face I can identify them but I didn’t identify their names.
Ms Nicholls: Okay, so you couldn’t tell police who they were?
The Interpreter: I have told the police that you came with me and I just show you them, they are the BJP volunteers and everything and where they are sitting and like that they are sitting at their – the booth, their office like that small stuff and I will try to police to take over there but the police say that how can, you are in that crowd and how can you say that these are the persons who are attack on you. And without any proof they are not coming with me and they are just every time ignoring me to come with me.
The Tribunal summarised the applicant's evidence about this in its statement of reasons:
After the assault he went to the hospital for treatment and then went to police to make an oral complaint. They told him they were not ready to take his complaint. He then put his complaint in writing to police however they ignored his complaint. I asked him why he had lodged a letter confirming that they had received the complaint. He told me that he wanted evidence that he had made a complaint. After they acknowledged they had received a complaint they did not take any further action. I put it to him that it would have been difficult for police because he was not able to identify his attackers by name. He claimed that he offered to take the police to the booth where they were located. The police said to him that if he could not identify them in a crowd he would not be able to identify the attackers and then they ignored his complaint.
The Tribunal put to the applicant “that the Congress Party dominated the National Government and a large number of State Governments”, and that “it was difficult to see how he would not be protected by government authorities or that his dispute with some BJP supporters would result in a withdrawal of protection”. The Tribunal also referred to discussing with the applicant whether he could settle in another state of India away from Gujarat. The Tribunal also referred to the two documents submitted by the applicant.
Under the heading ‘Findings and Reasons’, the Tribunal summarised the applicant's claims:
The applicant claims to fear persecution from supporters of the BJP in an areas of Ahmedabad who have threatened him, assaulted him and damaged his property because he refused to give the BJP a financial donation in December 2002. He claims that he complained to local police however they did not take any action on his complaint. He also claims that if he relocates to another part of India that BJP supporters will locate him and continue to cause him harm.
The Tribunal accepted that the applicant was a long term resident of Ahmedabad and, with his brother, owned shops. It said:
I accept that the applicant was and is a supporter of the Indian Congress Party.
The Tribunal accepted his account of harassment from BJP supporters in 2001. It did not accept that his travel overseas at the end of that year, after his marriage, was for any purpose other than tourism.
The Tribunal then addressed the applicant's claims in relation to events in November and December 2002:
I accept that the applicant made a donation to the local Congress Party in November 2002 and that local BJP supporters also sought a donation for the BJP in November 2002. I accept that the applicant was threatened and harassed on 28 November 2002 and that his shop was damaged by local supporters of the BJP because he refused to give a donation to the BJP.
Whilst I have some doubts about his evidence, for the purpose of this decision I accept that BJP volunteers returned to his store in December 2002 and that they punched him because he refused to give them money. I accept that he went to the police and complained about the incident. I also accept that he wrote a letter of complaint to the police inspector of the local police station. The applicant told me that he could not identify the assailants and that the police had pointed to his inability to identify his assailants as a problem in taking any further action. He claimed that the police had not taken alternative action to ascertain the identity of the attackers. It may be and I accept that on the applicant’s version of events, the police could have taken a more proactive attitude to investigating this matter however I do not consider that their conduct amounted to a denial or withholding of police protection for any Convention base reason. I consider that the applicant’s inability to identify his assailants would have made it difficult for police to investigate. I do not accept that the applicant was detained or mistreated by police at any time.
Further his willingness to complain about police conduct and to have his written complaint stamped at the local police station indicated that the applicant had faith that police would follow up his complaint, that neither he or members of his family would suffer any adverse consequences and that the local police would not be influenced by the political power of the BJP in considering the complaint. The country information indicates that whilst there have been corruption problems with police officers in different of India from time to time, that generally the police act in a non discriminatory manner and the judicial system is impartial and fair in dealing with complaints. Further, there are a number of other institutions which provide assistance where complaints against police and breach of human rights are alleged, in particular, the National Human Rights Commission nor state based equivalent commissions. There is no current evidence before me of systematic denial of police protection to persons for reason of political opinion either in Gujarat or in other states of India, excluding Kashmir. (UK Home Office Country Assessment April 2006 sect.6)
The Tribunal did not accept the applicant's claim that the BJP volunteers located him when he went to Mumbai to stay with relatives after the December 2002 incident, and did not accept that when he later returned to Ahmedabad they continued to harass and threaten him and that he had moved about.
The primary reason for the Tribunal affirming the delegate's decision is shown in the following paragraph:
I do not accept that if the applicant returned to India he would face persecution for reasons of his political opinion. I consider the mistreatment suffered by the applicant related to his refusal to give a donation to a local branch of the BJP. I consider that the police and judicial system operating in India is able to provide the applicant with a reasonable level of protection according to international standards. I also consider that the failure to prosecute those persons responsible for previous damage and harm to the applicant in 2002 was an isolated occurrence relating to difficulties with identification of the attackers. Accordingly, I do not accept that the applicant has a well founded fear of persecution for reasons of political opinion and if he were to return to India now or in the foreseeable future I do not accept that reasonable state protection would be withheld for reasons of political opinion or any other Convention based reason.
The Tribunal also gave an alternative reason for affirming the delegate's decision, based on principles in relation to relocation within the country of nationality to avoid local persecution. It said:
Even if I were to accept that the applicant had a well founded fear, which I do not, I have also considered whether the applicant would face any chance of harm if he relocated to another area of India. I find that the applicant is not a member of any political party and does not have a profile as a political figure anywhere in India. He came to the attention of the local BJP supporter in a particular locality of Ahmedabad because he chose to give a donation to the local Congress Party and not to the local BJP. I find that he has no profile outside the locality in which he owned and operated a small business in Ahmedabad. If he moved to another location either in Gujarat or to another state of India I find that he would not face any chance of persecution because he had given a donation to the Congress Party. The Congress Party holds power in a number of states of India and is the majority coalition party of the national government of India. India has a longstanding and robust democracy with considerable constitutional freedoms which are guaranteed in principle and in practice. There is no evidence before me which would indicate that support for the Congress Party would put the applicant at any risk of harm throughout India (US Department of State Report on Human Rights Practices 2005 rel Feb 2006). The applicant has given evidence that he is a young healthy man and that he and his wife have demonstrated considerable resourcefulness in arranging travel, work and accommodation in Australia with limited English skills and no family support. I find that if they relocated in India they would use these skills to adapt to a new environment where they could freely work and live and access the protection of their country of nationality.
In this Court, the applicants’ solicitor relies on a further amended application filed at the hearing which contains three grounds. The first two grounds challenge the Tribunal's reasoning in relation to its primary reason, and the third ground challenges the Tribunal's reasoning in relation to its relocation reasoning. The applicants’ solicitor accepted that to obtain relief the applicant was required to establish jurisdictional error affecting the Tribunal's reasoning in both of its alternative reasons.
The first ground is that:
In relation to 'State protection' the Tribunal made jurisdictional error as it failed to deal with the claim the applicant put to the Tribunal and dealt with a different claim.
It was argued that the jurisdictional error made by the Tribunal was the error identified in NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE at [47].
The applicants’ solicitor argued that the Tribunal's reasoning in the second paragraph set out above at [18], revealed that the Tribunal had misunderstood or misconstrued the claims advanced by the applicant. In particular, he argued that the Tribunal failed to address the applicant's statement to the Tribunal at the hearing that “face to face I can identify them, but I didn't identify their names”, when referring to what he said he had told the police after the assault in December 2002. He argued that the Tribunal's statement “The applicant told me that he could not identify the assailants and that the police had pointed to his inability to identify his assailants as a problem in taking any further action”, misstated the applicant's evidence.
However, I do not accept that the Tribunal misunderstood the applicant’s evidence. In my opinion, the gist of the applicant's evidence to the Tribunal, as it was in his written complaint to the police, was that he was not able to identify his assailants by indicating their names and identities. In my opinion, the Tribunal correctly understood that that this is what the applicant had told the police.
I also consider that the Tribunal shows that it understood the applicant's evidence that he had told the police that he would be able to “identify them” if they took him to the BJP booth. The Tribunal referred to this evidence when describing the hearing (see above at [13]). I consider that the Tribunal then, in the paragraph which is challenged, showed an appreciation of this when it said:
It may be, and I accept that on the applicant's version of events the police could have taken a more pro active attitude to investigating this matter.
I therefore do not accept that the Tribunal’s reasoning which is challenged under ground one reveals any misapprehension as to the claims made to the Tribunal by the applicant.
The second ground of the further amended application, is:
The Tribunal made jurisdictional error in making a finding in relation to State protection which was not open on the evidence.
This ground challenges part of the Tribunal's consideration of the level of State protection available to the applicant in India, where it said:
Further, his willingness to complain about police conduct and to have his written complaint stamped at the local police station indicated that the applicant had faith that police would follow up his complaint, that neither he or members of his family would suffer any adverse consequences and that the local police would not be influenced by the political power of the BJP in considering the complaint.
It is argued that in this sentence the Tribunal drew inferences from the applicant's history of his complaint to the police, including from his written complaint, which were "not reasonably open" within principles concerning error of law which were referred to by the Full Court in Minister of Immigration v Al-Miahi (2001) FCA 744 at [34]:
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles.
This judgment addressed a statutory ground of judicial review which would not necessarily provide a jurisdictional error, even if it were found in the present case. Further analysis is required as to the significance of the drawing of an inference not supported by evidence, before it could be identified as an error of jurisdiction rather than an error made within jurisdiction. In the present case, however, I do not need to enter further into an examination of the authorities in this respect.
I am not persuaded that the Tribunal's inferences from the applicant's evidence concerning his complaint to police, in particular, from the content of his written complaint and his explanations given to the Tribunal for making it, were not reasonably open to the Tribunal as a matter of law. Other Tribunals might not have felt it necessary to draw those inferences, but this does not mean that they were not “open” in law.
Moreover, I would not read this sentence in the Tribunal's reasoning as being determinative of its conclusions in relation to State protection. The essential reason why the Tribunal did not accept that the applicant was at risk of persecution in India in terms of the Convention definition was its general opinion about the level of State protection “according to international standards” generally available to the applicant from the police and judicial system operating in India. Its conclusions as to this went far beyond its examination of the responses of the local police encountered by the applicant in the incident to which he referred.
For these reasons I do not accept ground two.
Ground three of the further amended application contends:
The Tribunal made jurisdictional error as it asked the wrong question in deciding whether the applicant could relocate.
The argument in support of this ground focused upon the sentence in the Tribunal's discussion of relocation:
If he moved to another location either in Gujarat or to another State of India I find he would not face any chance of persecution because he had given a donation to the Congress Party.
It was argued that this sentence revealed the Tribunal confining its consideration of the applicant's situation to the risks arising from a past incident of persecution, without consideration of the future conduct of the applicant and the likelihood that it would be affected by persecution. In particular, it was argued that the sentence did not show the Tribunal addressing whether the applicant was at risk of further persecution in the event that he made further donations to the Congress Party.
However, in my opinion, the argument presented to the Court took a sentence out of context, and read too much into it. It was very pertinent for the Tribunal to consider whether the applicant would face risks of further repercussions from the December 2002 incident if he returned to Ahmedabad or elsewhere in India, since this was essentially how the applicant presented his fears of persecution to the Tribunal. There was no suggestion in his evidence to the Tribunal that he would be making future donations to the Congress Party.
However, the Tribunal did accept that the applicant “is” a Congress Party supporter (see above at [16]). When addressing relocation to “a new environment” the Tribunal then sufficiently showed that it addressed his risk of persecution generally for his political opinions, including in relation to any possible future support for the Congress Party. In my opinion, this was sufficiently shown in the Tribunal's finding:
There is no evidence before me which would indicate that support for the Congress Party would put the applicant at any risk of harm throughout India.
This finding was clearly framed in terms of the future and, in my opinion, addressed the element which this ground argued was not addressed by the Tribunal.
For the above reasons, I do not accept any of the grounds of jurisdictional error raised by the applicants. The Tribunal's decision is, therefore, a privative clause decision, and I must dismiss the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 24 July 2007
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