SZJNO v Minister for Immigration and Citizenship

[2007] FCA 1734

FEDERAL COURT OF AUSTRALIA

SZJNO v Minister for Immigration and Citizenship [2007] FCA 1734

SZJNO AND SZJNP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1468 OF 2007

STONE J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1468 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNO
First Appellant

SZJNP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1468 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNO
First Appellant

SZJNP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	7 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate, made on 11 July 2007; [2007] FMCA 1148. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, refusing the grant of a protection visa to the appellant and his wife, both of whom are citizens of India. I shall refer to the husband as the appellant, because his wife makes no independent claims, but merely relies on her position as a member of her husband’s family.

2. The appellant claims to have a well-founded fear of persecution, arising from his support for the Congress Party, presently the governing party in India, and his alleged persecution by the opposition Bharatiya Janata Party (BJP), as a result of that support.  The details of his claims are set out at some length in the decision of the Federal Magistrate.  In short, they refer to harassment and intimidation by the members of the BJP after he gave a donation to the Congress Party.  The appellant complained to the police and, following police inaction in response to his claims, made a further complaint to the Inspector of Police.  He claims that the Indian government and state authorities are not able, or not willing, to protect him from persecution. 

3. The Federal Magistrate dismissed those claims and gave detailed reasons for his decision.  In this appeal the appellant sets out three grounds of appeal, all of which allege that his Honour was in error in not finding that the Tribunal had made jurisdictional errors.  I shall deal with each ground of appeal.  The first ground is:

   The learned Federal Magistrate erred by failing to hold that in relation to “state protection” the Tribunal made jurisdictional error as it failed to deal with the claim the appellant put to the Tribunal and dealt with a different claim.

4. The Tribunal accepted that the appellant had made a donation to the local Congress Party and that the local BJP supporters had also sought a donation for their party.  The Tribunal accepted that the appellant was threatened and harassed and that his shop was damaged by local supporters of the BJP, because he refused to give them a donation.  The Tribunal expressed some doubts about the appellant’s evidence, but added that:

   …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 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.

   The Tribunal continued:

   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 based reason.  I consider that the applicant’s inability to identify his assailants would have made it difficult for the police to investigate.  I do not accept that the applicant was detained or mistreated by police at any time

5. At the hearing of the appeal, Mr Silva who appeared for the appellant, argued that the Tribunal’s statement that the appellant had told it that he could not identify the assailants was incorrect.  The evidence on this point is a little more complicated than initially appears and should be considered in the context of the appellant’s complaint that the police did not respond to his complaints.  In his written application for review by the Tribunal the appellant said: 

   Once I went to police station to make complaint against them they put me in the jail and went to my house and tries to harass my family and asked so much money and also injured me a lot.  This happened twice – thrice.

6. In his letter of complaint to the Inspector of Police the appellant referred to two incidents when he was harassed at his shop by people he says were members of the BJP and continued:

   This is why, its my humble request to give me police protection or else they will kill me and due to that warning, otherwise I’ll have to leave this city (country) with my family I do not recognise those people but I can strongly say that they have support from the government party and they belong to that party.

7. At the hearing before the Tribunal this issue of identification was again raised.  In asserting that the police did not act on his complaints, the appellant, speaking through an interpreter, said:

   … 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 all are 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.

8. When the Tribunal asked if he could identify the BJP volunteers, the appellant said:

   As face to face I can identify them but I didn’t identify their names.
   …
   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 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.

9. Read in the context of that evidence, the Tribunal’s statement that “the applicant told me that he could not identify the assailants” is readily understood as a statement that he could not identify them by name and his further statement that the police had pointed to his inability to identify his assailants as a problem in taking any further action, can equally readily be understood as the police declining to go with him to have him point out the individuals concerned.

10. I do not accept that the Tribunal did not understand the nature of the complaint that the appellant was making, nor do I accept that the Tribunal dealt with an entirely different claim.  There is no jurisdictional error evident in the Tribunal’s dealing with this issue and therefore the first ground of appeal must be rejected. 

11. The second ground of appeal is that the learned Federal Magistrate erred by failing to hold that the Tribunal made a jurisdictional error in making a finding in relation to state protection which was not open on the evidence.  The gravamen of this complaint is that the Tribunal was in error in rejecting his claim that the state authorities were unable or unwilling to protect him from persecution at the hands of BJP supporters.  On this issue the Tribunal made the following statement:

    Further [the appellant’s] 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 local police would not be influenced by the political power of the BJP in considering the complaint.

    The reference to having his written complaint stamped is a reference to the appellant’s statement that he wanted the written document stamped for the purposes of subsequent court proceedings.  Following this comment, the Tribunal added:

    The country information indicates that whilst there have been corruption problems with police officers in different parts 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.

12. The appellant submits that there was no evidence to support the Tribunal’s conclusion about his subjective state of mind as evidenced by his willingness to complain about police conduct.  In my view, however, it was not unreasonable for thr Tribunal to conclude that the appellant’s willingness to complain about police conduct indicates that he did not expect this to result in adverse consequences for himself or his family and that he did not expect that the local police would be influenced by the BJP.  Similarly, the finding that the appellant had faith that the police would follow up his complaint is also open. 

13. The conclusion that these findings were open to the Tribunal does not imply that another decision-maker would have made the same finding.  That may or may not be so but it is not what is required.  In any event, however, the Tribunal’s findings are supported by the country information to which it referred.  The fact that the country information indicated that generally the police act in a non-discriminatory way supports the Tribunal’s earlier findings and also its conclusion that the complaint about the state authorities cannot be justified.  I find no jurisdictional error in the Tribunal’s finding on this point. 

14. The third ground of appeal states that his Honour erred by failing to hold that the Tribunal made a jurisdictional error by asking the wrong question in relation to whether the appellants could relocate to another part of India.  Having found that the appellants did not have a well-founded fear of persecution, it was not strictly necessary for the Tribunal to consider the issue of relocation and the possibility, if that occurred, that the appellant would face any chance of harm.  It is not uncommon, however, for tribunals to make such ancillary findings, as did the Tribunal in this case.

15. The Tribunal noted that the appellant was not a member of any political party and did not have a profile as a political figure anywhere in India.  The Tribunal pointed out that he had only come to the attention of the local BJP supporters because of the donation that he had made.  The Tribunal found that if he moved either to another location in Gujarat or to another state of India he would not face persecution because he had given a donation to the Congress Party.  The Tribunal did not stop there, however, but went on to consider the position of the Congress Party in India and the vulnerability of its supporters.  It said:

    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. … 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.

16. There was no claim by the appellant that he was in the habit of giving donations to the Congress Party, rather his evidence on the point indicated that he made a specific donation for a specific purpose, namely, that he might obtain the support of the Congress Party by getting government orders for his stationery shop should the Congress Party achieve power.  In the passages from its reasons that I have quoted the Tribunal examined both the consequences for the appellant as a result of him giving a donation to the BJP and the consequences for him as a supporter of the Congress Party into the future.  The Tribunal was satisfied on the independent evidence to which it referred that supporting the Congress Party would not expose the appellants to persecution against which the state would be unable or unwilling to protect and for all of those reasons the Tribunal rejected the appellant’s claim for protection visas.

17. The Federal Magistrate considered the issues raised in the three grounds of appeal put to this Court and concluded that the Tribunal had made no jurisdictional error.  I agree with his Honour’s conclusion and it follows from that that I find no error in his decision to dismiss the application for judicial review.  The orders of this Court must therefore be that the appeal is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        13 November 2007

Solicitor for the Appellants:	Silva Solicitors
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007