SZKFT v Minister for Immigration
[2007] FMCA 1311
•18 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1311 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – no obligation to serve 424A(1) notice in respect of information supplied by the applicant at the Tribunal hearing – the persecution feared by the applicant was not for a convention reason. |
| Migration Act 1958, ss.91X, 424A |
Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 124 ALR 265
| Applicant: | SZKFT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 545 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 June 2007 |
| Date of last submission: | 18 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 545 of 2007
| SZKFT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 21 May 2007, the applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 28 December 2006 which affirmed the earlier decision of a delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 22 September 2006 refusing the applicant's application for a protection visa.
Section 91X of the Migration Act (“Act”) provides that the Court must not publish the applicant's name.
Background facts
The applicant is a citizen of India and formerly a resident of Mumbai. The applicant claims to fear persecution in India. The facts alleged in support of his claim for a protection visa are set out on pages 4-5 of the Tribunal's decision and can be paraphrased as follows.
In late February 2006 the applicant approached some persons who were consuming liquor near his shop and he asked him to "step aside" but was "physically abused." When he reported the names of his assailants to the local police he was advised not to do so as it might cause problems for him because the persons in question were running all the illegal work in his area.
Some time later the applicant again attended the police station to report the matter, this time accompanied by a Congress Party person, and was telephoned by his father who advised him that the original assailants had set his business premises alight, and it was "burnt completely". Subsequently, the applicant was taken to the local police station and asked to sign a statement agreeing that the fire was the result of an accident and that he had no complaints against any persons. The applicant refused and he was "mercilessly beaten up" by the police officer.
The applicant was released the next day with a warning not to press his case, and belongings which had been taken from him at the police station were not returned. The applicant claimed that after this event he used to be called on alternate days to report to a local policeman. The applicant prepared a written complaint against the police officer, but was then detained by the police and was tortured and forced to write a letter, after which he was released. Subsequently it appears he was also called to the police station, but only for the purposes of harassment.
The applicant fears that he would be physically mistreated by the five people whose behaviour he reported and the police inspector against whom he had lodged a complaint.
He also claimed that he would be assassinated or implicated in this case, by the five people against whom [he had] complained and the senior police inspector also
on the basis that these people have connections with anti-social elements.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal's decision was based on the following findings and facts.
Convention ground of persecution
The Tribunal was not satisfied that the harm the applicant was claiming to fear constituted significant physical harassment of the person or significant physical ill-treatment of the person. It was not satisfied that the harm the applicant feared was sufficiently serious to constitute persecution for the purposes of the Convention.
Convention ground of well-founded fear
The Tribunal noted that at its hearing the applicant had claimed that his father had suffered "the same problem" for at least five years, and the applicant described that problem as being as follows:
a)the applicant's father had been approached in the grocery store that he operated by a member of the BJP Party and this person requested the applicant's father provide the BJP with a substantial donation, which was refused;
b)soon afterwards another man attended the applicant's father's store and requested that he mind a "heavy bag" he wished to leave at the shop for a while. For some unexplained reason the applicant's father agreed to do this, following which he was raided by local narcotics police and the bag was found to contain approximately 10 kilograms of "poppy flower";
c)the applicant's father was then detained for three months, at which time he was released on bail;
d)the applicant's father remains on bail and continues to operate his business, but remains subject to continuing court action relating to this matter.
The applicant claims that his brother, who remains in Mumbai, has recently been harassed by the local police and investigated or charged, or subject to court action relating to "opium". The applicant claims that the police had no reason to arrest his brother and he believed they were harassing him. The applicant's brother has now been released and the applicant confirmed to the Tribunal that there were no outstanding charges against his brother arising from this incident.
Referring to these assertions the Tribunal stated that it was not satisfied that the applicant had a real chance of persecution in India for any reason. The Tribunal also concluded that if he was targeted for harm, an essential or significant reason for this did not include any Convention reason. In arriving at this conclusion, the Tribunal said this:
… the mere fact a person is harmed by eg a local politician, would not necessarily mean an essential and significant reason the person would be targeted was for a Convention reason. The Tribunal is also not satisfied the subsequent alleged arrest of the father on false charges was for a Convention reason. Neither did the Tribunal accept on the evidence provided that an essential and significant reason the brother was targeted for harm was to ie, put pressure on either the father or the applicant before this Tribunal; or for any Convention reason. (CB 107)
The Tribunal also noted that the applicant agreed that the reason he was currently being targeted for harm had arisen due to him having made a complaint about the intoxicated people who had subsequently beaten him. He claimed that these persons had access to local authorities and could and did bribe them.
The Tribunal concluded that it was not satisfied that any motivation to harm the applicant contained the dual character of being both personal and Convention-related, and it was, in fact, satisfied that the motivation to harm the applicant, should it exist at all, was solely personal. The Tribunal was not satisfied that an essential or significant reason that the applicant may be targeted for harm included at least one of the reasons in the Convention, and even if he were to be harmed in India, it was not satisfied that this would be for a Convention reason.
Relocation
The Tribunal was not satisfied that the applicant's alleged opponents in Mumbai would be willing, or possibly even able, to trace him should he relocate within India, and was satisfied he could safely relocate. The Tribunal was also satisfied that it would not be unreasonable for the applicant to do so.
Proceedings in this Court
In his amended application the applicant asserts that the Tribunal made a jurisdictional error, and provides five particulars of that error. In his submissions today the applicant provided an additional particular.
First particular
In the first particular the applicant alleges that the Tribunal erred when it accepted that the applicant had a real chance of persecution but observed that:
a)the applicant was not targeted for his actual or imputed political opinion;
b)it also mentioned that the applicant was targeted for failing to comply with a request for funds;
c)without giving any reasons for its conclusions.
In relation to the first of these elements it was not part of the applicant's claim to fear persecution because he was targeted for his political opinion, imputed or otherwise. Certainly it is true that the applicant said that he went to the police station with a member of the Congress Party, but he does not say that he was a member of the Congress Party himself, or that he was a Congress Party supporter, or that any of the people to whom he referred as being outside his own premises were related to the Congress Party. The applicant says that his father refused to pay money to the BJP, but there is nothing appearing in the Tribunal's decision record which indicates that the applicant was targeted by the BJP for anything the applicant did or was perceived to have done.
In relation to the second element of this ground, that the applicant was targeted for failure to comply with a request for funds, this was not the claim which the applicant made. It was the applicant's father who refused to make payment to the BJP; and it would appear that it is the applicant's father who is being framed for a narcotics offence as a result of refusing to pay money to the BJP.
In relation to the third element, being that the Tribunal gave no reasons, in fact, it gave six pages of reasons for its decision. If it did not mention the matters which the applicant now raises in his application, it is because he did not raise those issues with the Tribunal.
Second particular
The second particular raised by the applicant is that the Tribunal made a jurisdictional error when it observed that he had a relationship with the Congress Party, and because of his involvement with the Congress Party, a Congress Party person helped him. As has already been observed in these reasons, the applicant made no claim to the Tribunal which can be found in the Tribunal's decision record, that he had any association with the Congress Party. Certainly, the Tribunal made no observation that the applicant had a relationship with the Congress Party or that he was involved with it.
Should the applicant have wished to demonstrate that the Tribunal had failed to refer to important evidence or other material which he had put before it, then he could have done so by preparing and tendering in these proceedings a transcript of the proceedings before the Tribunal. Having not done so, the only record of the proceedings before the Tribunal is what appears in its decision record, and on that basis it can only be concluded that the applicant made no claim to a Congress Party relationship or involvement, notwithstanding what he now says.
Third particular
The third particular is expressed in the following terms:
The Tribunal made an error of law when it made its decision that the applicant did not understand the observation of the Tribunal in the page 7, 8 and 10 of the Tribunal decision and also did not understand how it was related with his claim for protection in Australia.
This is not a basis on which the Tribunal's decision can be set aside. I asked the applicant during the course of his submissions if he could clarify what was intended by this ground but he was unable to do so.
Doing the best I can, it appears that the applicant challenges the Tribunal's conclusions that his claim to persecution did not fall within any of the reasons mentioned in the Convention, namely that although it accepted that he might be subject to ill-treatment upon return to India, that ill-treatment did not amount to persecution as understood by the Convention or the Act.
The Tribunal did not misunderstand the tests prescribed by the combined effect of the Convention and the Act and this ground is not made out.
Fourth particular
In the fourth particular the applicant alleges that the Tribunal was in breach of its obligations under s.424A of the Act. A consideration of the Tribunal's decision reveals that this is not so, as the information upon which it relied in reaching its decision was information which the applicant gave it during the course of the hearing and which thus falls within the exception contained in s.424A(3)(b).
The Tribunal also relied in part on some independent country information and that information falls within the exception found in s.424A(3)(a). As a result, the Tribunal had no obligation to provide to the applicant a notice pursuant to s.424A(1).
To the extent that the applicant is concerned that the Tribunal relied on legal authorities as part of its reasoning process, it is well established that legal authorities do not constitute information as that term is understood by s.424A..
Fifth particular
The fifth particular raised by the applicant is that the Tribunal erred when it:
wrongly observed the relocation issues for applicant
and did not consider the financial issues and living facilities of the applicant.
It should be observed that the Tribunal was under no obligation to consider the question of relocation as it had concluded that the applicant did not have a well-founded fear of persecution for a Convention reason. However, apparently for abundant caution it chose to do so; and although the applicant now says that it did not consider financial issues and living facilities, this is not what the applicant raised with the Tribunal.
The Tribunal records the applicant saying that he would be unable to speak local languages elsewhere in India, and it would not be easy to relocate with his parents. However, the Tribunal noted that the applicant claimed to be able to speak Punjabi, English and Hindi - Hindi being the primary language of India - and that in relation to leaving his father, that is what the applicant has already done and intends to continue to do if he relocates to Australia.
On this point I adopt what the Minister has said in his submissions on this issue, namely:
There is no merit in this complaint. The Tribunal clearly applied the correct principles in connection with relocation and considered whether it would be reasonable: see Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J where his Honour noted that ‘if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim for persecution…it follows, in my view, that the question for the [Tribunal] was one of fact in that context’. In other words, the Tribunal must consider the reasonableness of relocation having regard to the particular facts of the claim. That was done here. The relocation finding was open in the circumstances.
Generally
The ground raised by the applicant in the hearing today is that the Tribunal found that the applicant had no fear of persecution if he returned to India. That is not what the Tribunal found. The essence of the Tribunal's finding was that whatever harm the applicant might fear were he to return to India was not one which was comprehended by the Convention. That is the essence of the Tribunal's decision. Unless a Convention nexus is demonstrated by the applicant, which was not the case on this occasion, it is really neither here nor there whether the Tribunal said that he had a fear of persecution or not.
Conclusion
For all these reasons jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 August 2007
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