SZJQD v Minister for Immigration - [2007] FMCA 183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 183

MIGRATION – RRT decision – Hindu BJP supporter claiming persecution by Muslims in Gujarat – Tribunal found no real chance of persecution under Convention and reasonable to relocate – no arguable case raised – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss. 91R(1)(b), (2), 424A, 476
Federal Magistrates Court Rules, r.44.12(1)(a)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60

First Applicant:

SZJQD

Second Applicant:

SZJQE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3232 of 2006

Judgment of:

Smith FM

Hearing date:

6 February 2007

Delivered at:

Sydney

Delivered on:

6 February 2007

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the First Respondent:

Ms H Blackman

Solicitors for the Respondents:

Blake Dawson Waldron

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 applicants must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3232 of 2006

SZJQD

First Applicant

SZJQE

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 6 November 2006, which 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 dated 5 October 2006 and handed down on 17 October 2006. The Tribunal affirmed a decision of delegate made on 17 June 2006 refusing to grant protection visas to the applicants. The applicants are a husband and wife. Only the husband presented substantive claims to be a refugee and, as did the Tribunal, I shall refer to him as ‘the applicant’.
The applicant appeared before me at the first Court date on

28 November 2006. The nature of the proceeding was explained to him by me and in an information sheet, and the applicants were given an opportunity to file an amended application and any evidence after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that the application might be dismissed today, if I were not satisfied that it raised an arguable case for the relief claimed.
The applicants have filed an amended application, which I shall consider below.
The applicant arrived with his wife in Australia in April 2006, and lodged an application for a protection visa on 4 May 2006. He was assisted by an agent, Mr Jayawardena, who also assisted him before the Tribunal.
A short statement attached to the application explained claims to fear persecution in India. He said that he was a Hindu whose shop was looted during Hindu/Muslim communal riots. He claimed that, when he restarted, he received demands and threats and had to relocate. He also made a claim to have been "a president of the political party in my village", and to have received threats from Congress party supporters when canvassing for the BJP.
No support for these claims was presented, but when the applicant attended a Tribunal hearing he gave more details, and qualified some of his written claims. He told the Tribunal that his shop had been robbed during communal violence in Gujarat following an incident at Godhra in February 2002, when a train carrying Hindus was set alight by Muslims. He said that he reopened his shop six months later, and operated it for a number of years, leaving it for a period in 2003 when he travelled to Singapore, Thailand and Malaysia. He said that his shop was in a Muslim area, and that he continued to receive threats and warnings. He told the Tribunal that his family was not directly threatened, but he received threats referring to his family members. The shop apparently remained in existence after he came to Australia, but was later closed.
In relation to his political activities, he told the Tribunal that he had been an ordinary member of the BJP and did not hold any positions. His activities were promoting the party and attending meetings during elections, and he had received some threats during the last State elections in 2002.
The applicant also claimed to the Tribunal that he had been threatened by other businessmen because he owed them money.
The Tribunal questioned the applicant about whether he would be able to relocate to a different area in India.
In its statement of reasons, the Tribunal referred to country information about the situation in Gujarat after the Godhra incident, and to the most recent assessment of religious freedom in India.
Under the heading ‘Findings and Reasons’, the Tribunal indicated that it proposed to assess his claims on the basis of his oral evidence and without drawing any adverse inference from inconsistencies with his previous written claims.
The Tribunal identified his claims of being threatened by Muslims and political opponents, and also his claim to have been threatened by creditors. The Tribunal accepted that his shop was robbed and his chair was burnt following the communal violence in 2002, and that he had suffered financial loss at that time. The Tribunal said it was not satisfied that the financial loss suffered by the applicant as a result of the 2002 incidents “caused him significant economic hardship that threatened his capacity to subsist”.
The Tribunal found that any threats from his creditors and fears arising from that “are not for a Convention reason”.
The Tribunal accepted that the applicant received threats from Muslims in subsequent years after the riots. It said:
The Tribunal accepts that the applicant has received threats from Muslims in (his town). According to his evidence, he has continued to receive threats ever since the communal riots in Gujarat in 2002. Apart from a period of two months that he lived in Ahmadabad following the riots, the applicant continued to live at the same address in (his town) and run his business from the same location as he had for many years prior to the riots. His evidence suggests that the Muslims he fears were fully aware of his place of work as they visited him on a daily basis. Throughout the four years that he continued to operate and attend to his business, he did not claim to have suffered any other harm apart from the verbal threats. Nor did he claim that any member of his family had suffered harm or had received threats to their own persons. The Tribunal is of the view that the threats against the applicant were designed to intimidate him into leaving the Muslim area where he operated his shop from. On the basis of the evidence before it, including the applicant’s own conduct, the Tribunal is not satisfied that the applicant seriously felt threatened and those making the threats seriously intended to act upon them. The Tribunal, therefore, finds that the threats in this case did not fall within s.91R(1)(b) and do not give rise to any real chance of persecution in the reasonably foreseeable future.
The Tribunal's assessment of the likelihood or risk of harm arising from threats appears, in my opinion, to be consistent with the interpretation of s.91R(1)(b) and (2) adopted by the High Court in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60.
The Tribunal assessed the applicant's claimed fear from political rivals, and concluded:
Based on the evidence before it, the Tribunal is not satisfied that there is real chance that the applicant will suffer harm for the reason of his membership and support for BJP if he were to return to Gujarat now or in the reasonably foreseeable future.
The Tribunal noted that the BJP was in power in Gujarat.
The Tribunal also assessed whether the applicant could relocate from his Muslim area. It concluded that it was “not satisfied that he would not be able to, or he would be prevented from, resuming his business activities or earning a living elsewhere in India.” It referred to the position of BJP members and Hindus in Gujarat and Hindus in Gujarat, and said:
The Tribunal is satisfied that if the applicant relocated to any of these States where Hindi speaking Hindus are a majority and BJP is in power there is no real chance that he would face harm by BJP opponents or Muslims of (his town). The evidence before the Tribunal did not suggest that he would be denied State protection in these States because of police complicity, anti-BJP corruption or bias towards Muslims. The Tribunal is satisfied that if the applicant wished to avoid the possibility of further conflict with Muslims, or his political opponents in Gujarat it is reasonable for him to relocate to a different part of India.
I have considered the reasoning and procedures followed by the Tribunal, and am unable to identify any arguable ground upon which the applicants have any prospect of obtaining relief in this proceeding.
The applicants’ original application relied on one ground: “That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth)”. The particulars identify the breach as arising from its reliance upon general country information. However, that contention is misconceived (see s.424A(3)(a) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).
The applicant's amended application contains the following grounds:
1. The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution the applicant claims.
Particulars: Section 91R(1)(b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory. The tribunal concluded that (the applicant’s surname) is a common name in the state of Gujrat. Several relatives and non relatives in the State of Gujarat are people who bear the name of (surname). Indeed, Gujarat who interpreted for the applicant was also called (surname). GB PP 115.
The tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordance with section 424A(1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs. HCA
2. The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular social group and as result of all he faced financial hardship, to whom the Australia has protection obligation as a member of such group. And therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or misapplication of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the correct test by the tribunal. Therefore misapplying the law is in fact failure of the tribunals jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accordance with the law and procedures.
Ground 1 is obscure, and I suspect that it has been adopted uncritically from another case. Certainly, in the present case I am unable to identify any claim that the applicant made in relation to his surname nor reference by the Tribunal to his surname as part of its reasoning. The present court book does not contain a page 115.
I consider that the Tribunal did address the claims that had been raised by the applicant.
As I have indicated above, I can see no arguable error in the Tribunal's application of s.91R(1)(b). In any event, that finding was not an essential foundation for the Tribunal's decision, since it presented an independent reason for affirming the delegate's decision, being its opinion as to relocation.
As I have indicated above, I cannot see any arguable failure to follow s.424A (1) in this case.
The Tribunal's finding in relation to relocation, in my opinion, reflected a proper appreciation of the law, and I cannot see any arguable error in its reasoning.
I find ground 2 largely incomprehensible, and I am unable to identify any arguable contention of jurisdictional error raised by it.
The applicant was not today able to point to any arguable jurisdictional error.
For the above reasons, I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under rule 44.12(1)(a).

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 22 February 2007