SZKHE v Minister for Immigration and Citizenship
[2008] FCA 244
•28 February 2008
FEDERAL COURT OF AUSTRALIA
SZKHE v Minister for Immigration and Citizenship [2008] FCA 244
SZKHE, SZKHF, SZKHG, SZKHH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1823 OF 2007LINDGREN J
28 FEBRUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1823 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKHE, SZKHF, SZKHG, SZKHH
AppellantsAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
28 FEBRUARY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the first respondent’s costs of the appeal.
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
NSD1823 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKHE, SZKHF, SZKHG, SZKHH
AppellantsAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE:
28 FEBRUARY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellants appeal from a judgment of the Federal Magistrates Court of Australia given on 17 August 2007: SZKHE & Ors v Minister for Immigration & Citizenship & Anor [2007] FMCA 1323. The Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (Tribunal). The written record of the Tribunal’s decision was signed on 15 January 2007. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent, the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship (Minister), dated 23 October 2006, refusing the appellants’ application for protection visas.
Only the first appellant made specific claims for protection. The other three appellants are his wife and two children, who relied on their membership of his family. For convenience, I will refer to the first appellant simply as “the appellant”.
The second respondent, the Tribunal, filed a submitting appearance.
The appellant claimed to have been born in Hyderabad in 1970, to be a Muslim, to have completed his education in 1989, and to have worked in sales from 1996 until 2006. He claims to have married in 1996 and to have two children.
The appellant, his wife and two children arrived in Australia on 16 August 2006. They claimed to be citizens of India.
THE APPELLANT’S CLAIMS
The appellant’s claims were made in a statement that accompanied his application for a protection visa, dated 27 September 2006.
In summary, the appellant’s claims were of two kinds. First, he claimed to have been discriminated against when he tried to enter higher education, because his father was a coordinator of the “Majlis Atthad ul Muslimeen” (or Majlis-e-Ittehadul Muslimeen) (MIM) in Khilwat, a suburb or area within Hyderabad.
That claim was made in paras 9 and 10 of the statement which accompanied the visa application. Paragraphs 9 and 10 were as follows:
9.After completion year 10, I wanted to go to Dharmawan Junior College, which is predominantly Hindu college for further study but due to my father’s connections with MIM, I was refused admission.
10.I tried to get admission in other colleges but every time my application was refused due to my father’s political relations with MIM. This is how my educational career was destroyed.
In the statement the appellant stated that he completed his schooling in Hyderabad in 1989 and 1990, and attained his year 10 certificate. He also stated that in or about 1992, the Bharatiya Janata Party (BJP) was in power and that that party was against the Muslims and worked for Hindus only.
The appellant claimed to have joined the MIM in 1996 as a member, and in that capacity used to attend meetings, collect funds, participate in providing social welfare for the members of the MIM, and campaign for the MIM during election time.
The appellant said that in 2004 he was appointed coordinator of the MIM in the Khilwat area, where his father used to be coordinator. He said that in his role as coordinator, his duties included dealing with criminal gangs and ensuring the safety of MIM members in the area, and that those activities usually placed the MIM coordinator in a “bad position”.
This leads to an account of the second kind of claim made. The claim was that in October 2005, a drug dealer named Shudarshan Ready (or Reddy) kidnapped an MIM member from the Khilwat area and demanded a $500,000 ransom. The appellant said that the MIM decided not to pay the ransom, and that in about December 2005 he and his colleagues “registered a police case against” Mr Ready. However, the police did not arrest Mr Ready. The MIM members held a protest rally during which some men with automatic weapons opened fire, as a result of which two MIM members died and five were injured badly.
The appellant claimed that Mr Ready subsequently sent him a message not to pursue action through the police, and demanded payment of the $500,000. The appellant claimed that he continued to pursue the police route, but that the police declined to arrest Mr Ready because of lack of evidence.
In March 2006, the appellant was, according to his statement, “so stressed running around to secure freedom of our member”, that he came to Australia for a short holiday in the hope that things would improve in Hyderabad. Upon his return in April 2006, however, the police arrested him on a drug charge, which he believed had been brought to “harass him”. He said that he spent three days in police detention, during which he was threatened and tortured, and asked not to pursue the case against Mr Ready. He said that the MIM intervened and secured his release.
In June 2006, according to the appellant’s statement, the police conducted a raid on the appellant’s house and claimed that he was involved in the illegal smuggling of weapons. The appellant claims that the police found nothing, but that at the police station, the police told him that they had found two semi-automatic guns in his bedroom.
According to the statement, the MIM then took the position that they would be impartial until the police completed their inquiries. The appellant asserted that the police allegations were a shock and embarrassment to the MIM, who were by now in power along with the Congress Party.
Following the appellant’s release on bail after three days, he decided (in July 2006) to leave India forever in order to escape the police and criminal gangs, and the persecution of him because of his affiliation with the MIM.
He said in his statement that he believed if he returned, he would be killed by the Ready gang, or put behind bars by the police.
THE TRIBUNAL’S REASONS FOR DECISION
The Tribunal conducted a hearing on 10 January 2007.
In its reasons, the Tribunal recounted the appellant’s claims, and referred to the answers he had given at the Tribunal hearing. The Tribunal stated that the appellant had not presented his claims consistently, and had shown only limited knowledge regarding the MIM. Nonetheless, the Tribunal noted that the appellant had been consistent in asserting his involvement with the MIM, his difficulties with drug dealers in Hyderabad, and the lack of police assistance in Hyderabad when he had sought police protection. The Tribunal implicitly accepted those claims, and stated that it had decided to give the appellant the benefit of the doubt with regard to his other claims.
The Tribunal stated (at p 8 of the Tribunal’s Decision Record):
The Tribunal accepts the applicant’s claim that he was involved with the MIM and, as [a] consequence of his MIM activities, he was threatened and harassed by drug dealers and corrupt police in Hyderabad. The Tribunal accepts the applicant’s claim that the police were unwilling to assist him when he sought protection and that on two occasions, he was falsely accused of being implicated in a drug case and weapon smuggling.
The reason why the Tribunal decided adversely to the appellant in relation to his difficulties with drug dealers and the police was that those difficulties were confined to Hyderabad at a particular time when he was involved with the MIM. The Tribunal found that the appellant could avoid his difficulties by relocating within India. The Tribunal stated that it was satisfied that the appellant had the skills, knowledge and resources to relocate with his family within India, and was satisfied that it was reasonable for the appellant and his family to do so.
23When the Tribunal confronted the appellant at the hearing with the possibility of relocation the appellant’s response was that Mr Ready might discover where he lived. The appellant also stated that he was no longer involved with the MIM, and therefore no longer enjoyed its protection, so that the drug dealer and his associates would be able to harm him. In its reasons, the Tribunal expressed itself as being satisfied that the chance of this happening would be remote.
In relation to the claim of discrimination against the appellant when he sought tertiary education because of his father’s involvement with the MIM, the Tribunal accepted the claim, but found that that discrimination was not of such a nature or extent as to amount to persecution for the purposes of Art 1A(2) of the Refugees Convention (Convention). The Tribunal had earlier referred to s 91R of the Migration Act 1958 (Cth) (the Act) which stipulated matters that must be established if persecution was to be constituted, including serious harm to the person.
THE FEDERAL MAGISTRATES COURT’S REASONS FOR JUDGMENT
On the application for review to the Federal Magistrates Court, the appellant claimed that the Tribunal had made a jurisdictional error by failing to comply with s 424A of the Act by not giving the appellant particulars of certain information which was the reason or part of the reasons for affirming the Delegate’s decision. The particulars given of the alleged non-compliance with s 424A actually raised different grounds, for example, that the Tribunal made an error of law in its application of s 91R of the Act.
On the hearing before the Federal Magistrate, additional grounds of complaint were made. The learned Federal Magistrate dealt with the grounds raised in the amended notice of appeal and those raised orally on the hearing. I see no error in the way in which the Federal Magistrate dealt with those matters.
THE PRESENT APPEAL
In the notice of appeal to this Court, the appellants raise the following grounds:
1. That the Federal Magistrate had erred in failing to recognise that the Tribunal had not complied with s 424A of the Act;
2. That the Federal Magistrate had erred by failing to accept that the Tribunal had not assessed the appellant’s claims in accordance with s 91R of the Act in assessing the appellant’s claims;
3. That the Federal Magistrate had erred in finding that the Tribunal had not failed to assess properly the relocation issue, and had not failed to ask the right questions of the appellant.
On the hearing today, the appellant, who was not represented, did not provide any detail of these complaints, nor were any provided in the notice of appeal. However, in written submissions the appellant complains that the information that the Tribunal should have given to him pursuant to s 424A of the Act was that the Tribunal member thought that the appellant had been inconsistent in the making of his claims. It is plain that the Tribunal is not required to provide in advance every recognition that it has of inconsistency, but perhaps more importantly in the present case is the fact that the Tribunal did not base its decision this inconsistency. It based its decision on the appellant’s ability to relocate.
In his written submissions, the appellant also repeats his complaint that the Tribunal had not conformed to s 91R of the Act. This complaint related specifically to the finding of discrimination in relation to tertiary education. The Federal Magistrate set out s 91R, which, so far as relevant, is as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person's life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3)...
The Federal Magistrate said that the Tribunal’s finding that the discrimination that had occurred in relation to the appellant’s application for admission to college, apparently in the early 1990s, was not of such nature or extent as to amount to persecution for Convention purposes was supportable. I agree.
In his written submissions, the appellant also complains that the Tribunal wrongly concluded that he and his family were able to relocate within India. However, the finding that any persecution from which the appellant had suffered was local to Hyderabad and would not carry over throughout India wherever the appellant might relocate was a matter of factual assessment and was open to the Tribunal to make. In his written submissions, the appellant asserts that:
…the police has a national network system all over India. [sic]
It does not follow that what particular police officers do in Hyderabad, or did in Hyderabad, will necessarily carry over throughout all of India if the appellant now returns to India.
In my view, it is not established that the Tribunal committed a jurisdictional error in its dealing with the appellants’ [Judge – Again, the application for review was filed on behalf of all the appellants – see AB 148] application for review of the Delegate’s decision, and it is not established that the Federal Magistrates Court committed any legal error in dealing with the appellants’ application to that Court for a review of the Tribunal’s decision.
It follows that the present appeal should be dismissed with costs. The parents, the first and second appellants, will be ordered to pay the first respondent’s costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 28 February 2008
The appellant appeared in person Counsel for the Respondent: Mr S A H Sirtes Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 28 February 2008 Date of Judgment: 28 February 2008
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