SZKHI v Minister for Immigration
[2007] FMCA 1061
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1061 |
| MIGRATION – Claim of alleged sexual harassment of applicant’s wife – claim does not have a Convention basis – social group – attribute common to all members cannot be the shared fear of persecution – can reasonably relocate. |
| Migration Act1958 (Cth), s.474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 |
| First Applicant: | SZKHI |
| Second Applicant: | SZKHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 739 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Ms K. Hooper of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 739 of 2007
| SZKHI |
First Applicant
| SZKHJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 5 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed 17 January 2007. That decision affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants a protection visa.
The first named applicant was born on 26 April 1960; his wife (who is the second named applicant in the proceedings) was born on 31 May 1959. According to their protection visa applications, the applicants are from India and of “Catholic” ethnicity (CB 13).
The applicants have two children, both of whom remain in India.
The applicants arrived in Australia on 16 August 2006 and lodged protection visa applications with the Department of Immigration and Multicultural Affairs on 13 September 2006. The applicant wife did not submit her own claims for refugee status, but is included in the application of her husband (hereinafter “the applicant”). In this application he claimed that the properties in his hometown were being purchased by a man named Mr Ibrahimkutty. He is the leader of the People’s Democractic Party and a man with “close ties” to Muslim extremists. The applicant claimed that Mr Ibrahimkutty commenced a campaign “through brokers and his henchmen” to buy his two properties; when the applicant refused to sell his land, Mr Ibrahimkutty’s “hirelings” assaulted the applicant and threatened his family. The applicant claimed that he was stabbed in the forearm and struck with iron bars. The applicant claimed that Mr Ibrahimkutty threatened to “wipe my family from the face of the earth”, thereby forcing the applicant and his family to go into hiding (CB 67-70). The applicant wife submitted a statutory declaration affirming her husband’s claims (CB 71).
This application was refused by a delegate of the first respondent on
27 September 2006 (CB 75).
On 16 October 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 86). The applicant attended a hearing before the Tribunal on
23 November 2006 to give evidence and present oral arguments (CB 169).
By decision signed on 17 January 2007 the Tribunal affirmed the decision of the delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 173-5) (highlighting added):
On the basis of the applicant’s passport the Tribunal accepts that the applicant is a citizen of India.
The applicant claims that he owns valuable and desirable properties in his hometown in Trivandarum, India. A local man Ibrahimkutty, a Muslim who is said to be powerful because of his political connections with the PDP has made offers to purchase the properties and the applicant has refused. On one occasion the applicant claims that he was injured by persons acting for this man who became upset at the applicant’s refusal to sell. In the applicant’s absences in Muscat for his employment Ibrahimkutty has sought to approach the applicant’s wife suggesting that she should get rid of her husband and be with him.
The Tribunal accepts that the applicant owns desirable and sought after property in Trivandarum. It accepts that this person Ibrahimkutty wants to buy the properties and the applicant refuses to sell. The Tribunal accepts that the applicant was beaten by Ibrahimkutty’s men on one occasion and sustained facial injuries. The applicant told the Tribunal that he reported the assault to the police. He said that the police came and questioned him. He claims that they then did not do anything about the matter. In his view the police took Ibrahimkutty’s side because he is powerful. At the hearing before the Tribunal the applicant said that Ibrahimkutty pays bribes to people and it is for this reason that police and government support him.
At the hearing the Tribunal asked the applicant about Ibrahimkutty’s political activities and any role he may play in the PDP. The applicant said that he knew little about this. He went on to tell the Tribunal that he himself has no political affiliations or connections. When the Tribunal asked the applicant on what basis he makes the claim that Ibrahimkutty pays bribes to police and government his response was that he must do so because they support him and take his side.
The evidence of the applicant before the Tribunal is that Ibrahimkutty wants his property. The evidence of the applicant wife is that he wants the property but also seriously desires her. He urged her to get rid of her husband and be with him. The Tribunal accepts that this is source of the applicant’s problems. Whilst the Tribunal accepts that Ibrahimkutty’s agents injured the applicant one occasion with a rod it does not accept, on the basis of the applicant’s assertions alone that the police failed to investigate the matter as he has claimed and for the reason that Ibrahimkutty was more powerful because of political connections. On his evidence the police came and questioned him about the incident. There is no plausible evidence and the Tribunal does not accept that the police withheld protection to the applicant because of his own political opinion or because of Ibrahimkutty’s political connections. Furthermore, there was no suggestion of further physical attack on the applicant or his wife after the episode in August 2005. The applicant returned to Muscat for a time, leaving his wife alone at the home. Later, before coming to Australia they stayed temporarily in Tamil Nadu but made several visits back to the home in Kerala. On those occasions they did not sustain any injury or attack. The Tribunal finds that the harm the applicant fears at the hands of Ibrahimkutty is not serious harm and it is not for any of the reasons in the Convention. The essential and significant reason for the harm feared by the applicant is the greed of a local developer who has his sights on the applicant’s property and his wife.
The Tribunal has considered the contents of the letter written by the applicant’s daughter Jewel who says that she has received threatening phone calls in the student hostel where she lives. The letter was provided to the Tribunal at the hearing. The applicant did not know who made the threats. The Tribunal concludes that the threats are not serious and finds that the applicant himself does not believe them to be made seriously. He did not, for example say that he has sought to move his daughter from the hostel on a permanent basis nor did he say that he has made special arrangements for relatives to be more vigilant of her.
According to his evidence before the Tribunal the applicant’s properties lie empty and he says that his children could never return to live here. He also told the Tribunal that he would never sell those properties because it would be impossible to buy anything comparable in the future. As the Tribunal put to the applicant at the hearing he spent some time in Tamil Nadu before coming to Australia and was not troubled there. He said that he lived there on savings he had accumulated whilst working in Muscat for many years. The applicant clearly has major assets in property. If indeed he fears harm, albeit for personal and private reasons and at the hands of one individual in the area of Trivandarum he could reasonably relocate elsewhere in the State of Kerala or elsewhere in India.
At the hearing the applicant said that because he is Christian he cannot stay in other places in India. He said furthermore that he is afraid to be in unknown places. As previously noted the applicant told the Tribunal that he left his home in Kerala for a time in 2006 and stayed with his wife in Tamil Nadu where he lived untroubled. The Tribunal does not accept that as a Christian he would not be able to relocate and live safely elsewhere in Kerala if he so chooses or in Tamil Nadu where he has lived, if only briefly on a previous occasion.
At the hearing before the Tribunal the applicant did not claim that he has ever suffered serious harm in India for reason of his Christian faith. He practised his religion in the parish of Puthenthope. The Tribunal has read the claim made in his written statement that as a Christian, whenever he was picked up by police during preventative operations he was held until he provided evidence of proof of his identity. He did not raise this claim in the hearing before the Tribunal. The Tribunal finds that a requirement to provide proof of identity is not unreasonable and certainly does not amount to harm.
In summary the Tribunal finds that the applicant has not suffered serious harm which amounts to persecution for any Convention related reason in India in the past. The chance is remote that he will suffer Convention related persecution in the foreseeable future. His fear is not well-founded.
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific Convention claims were made by or on behalf other applicants. The fate of the other applicant's application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction.
(2)Tribunal failed to give consideration to serious harm faced by the applicant.
(3)The Tribunal refused to accept and ignored the fact that he cannot relocate to another state.
The applicant has not filed an amended application.
Findings of the Court as to the grounds in the application
Ground one will be considered after grounds two and three are considered.
Ground two alleges that the Tribunal “failed to give consideration to serious harm faced by the applicant.” That claim is incorrect. The Tribunal accepted that Mr Ibrahimkutty’s agents injured the applicant with a rod on one occasion (CB 174.6) and found that “there was no suggestion of further physical attack on the applicant or his wife after the episode in August 2005” (CB 174.7). The Tribunal continued:
The applicant returned to Muscat for a time, leaving his wife alone at the home. Later, before coming to Australia they stayed temporarily in Tamil Nadu but made several visits back to the home in Kerala. On those occasions they did not sustain any injury or attack. The Tribunal finds that the harm the applicant fears at the hands of Ibrahimkutty is not serious harm and it is not for any of the reasons in the Convention. The essential and significant reason for the harm feared by the applicant is the greed of a local developer who has his sights on the applicant’s property and his wife. (CB 174.8)
The Tribunal has considered the contents of the letter written by the applicant’s daughter Jewel who says that she has received threatening phone calls in the student hostel where she lives. The letter was provided to the Tribunal at the hearing. The applicant did not know who made the threats. The Tribunal concludes that the threats are not serious and finds that the applicant himself does not believe them to be made seriously. He did not, for example say that he has sought to move his daughter from the hostel on a permanent basis nor did he say that he has made special arrangements for relatives to be more vigilant of her.
According to his evidence before the Tribunal the applicant’s properties lie empty and he says that his children could never return to live here. He also told the Tribunal that he would never sell those properties because it would be impossible to buy anything comparable in the future. As the Tribunal put to the applicant at the hearing he spent some time in Tamil Nadu before coming to Australia and was not troubled there. He said that he lived there on savings he had accumulated whilst working in Muscat for many years. The applicant clearly has major assets in property. If indeed he fears harm, albeit for personal and private reasons and at the hands of one individual in the area of Trivandarum he could reasonably relocate elsewhere in the State of Kerala or elsewhere in India.
At the hearing the applicant said that because he is Christian he cannot stay in other places in India. He said furthermore that he is afraid to be in unknown places. As previously noted the applicant told the Tribunal that he left his home in Kerala for a time in 2006 and stayed with his wife in Tamil Nadu where he lived untroubled. The Tribunal does not accept that as a Christian he would not be able to relocate and live safely elsewhere in Kerala if he so chooses or in Tamil Nadu where he has lived, if only briefly on a previous occasion.
At the hearing before the Tribunal the applicant did not claim that he has ever suffered serious harm in India for reason of his Christian faith. He practised his religion in the parish of Puthenthope. The Tribunal has read the claim made in his written statement that as a Christian, whenever he was picked up by police during preventative operations he was held until he provided evidence of proof of his identity. He did not raise this claim in the hearing before the Tribunal. The Tribunal finds that a requirement to provide proof of identity is not unreasonable and certainly does not amount to harm.
In summary the Tribunal finds that the applicant has not suffered serious harm which amounts to persecution for any Convention related reason in India in the past. The chance is remote that he will suffer Convention related persecution in the foreseeable future. His fear is not well-founded.
The Tribunal therefore made findings of fact on the applicant’s claims that he and his family faced serious harm. It also made findings of fact on the issue of relocation. Those findings of fact were properly open to the Tribunal on the material before it, and are not subject to review.
As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The above findings included a finding that the applicant returned to Muscat for a time, leaving his wife alone at the home (CB 174.7), and that later, before coming to Australia, they stayed temporarily in Tamil Nadu but made several visits back home in Kerala. On those occasions they did not suffer any injury or attack (CB 174.7). The Tribunal found that “the harm the applicant fears…is not serious harm and it is not for any reasons in the Convention” (CB 174.8).
The applicant claims in his written submissions that the Tribunal failed to deal with the second applicant’s claim to have been sexually harassed and to fear sexual harassment and persecution “by the Muslim politician Mr Ibrahimkutty”. The Tribunal’s finding that the harm feared was not serious and is not for any reasons in the Convention, included a finding on the wife’s claim of sexual harassment. The Tribunal considered the claim that Mr Ibrahimkutty “wanted” the applicant’s wife and concluded that it does not have a Convention basis (CB 173.7). The Court agrees.
It was not contended to the Tribunal or the Court that the actions of
Mr Ibrahimkutty towards the applicant wife is persecution for a Convention reason. It cannot be said that the applicant wife was a member of a particular social group of females who fear sexual harassment by Mr Ibrahimkutty as “the attribute common to all members of the group cannot be the shared fear of persecution”: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 at [36]. The failure of the Tribunal to deal independently with that issue therefore does not show any error in the decision of the Tribunal that there was nothing to show persecution for a Convention reason. Ground two is rejected.
Ground three claims that the Tribunal refused to accept and ignored the fact that he cannot relocate to another State. The Tribunal considered the issue of relocation. At CB 173.7 it found
The Tribunal put to the applicants that if indeed they do not wish to sell the property they may live safely in some other part of the State or Country. The Tribunal said for example they had spent time in safety in Tamil Nadu. The applicant husband said that Ibrahimkutty’s people did not know that they were there and it was only for this reason that they remained safely. He also added that because they are Christians they cannot stay in other parts of India. The applicant reminded the Tribunal that recently an Australian missionary was killed in India. He said he read that in the paper. He said that they are afraid to live in places which are unknown to them.
And at CB 175.1:
As the Tribunal put to the applicant at the hearing he spent some time in Tamil Nadu before coming to Australia and was not troubled there. He said that he lived there on savings he had accumulated whilst working in Muscat for many years. The applicant clearly has major assets in property. If indeed he fears harm, albeit for personal and private reasons and at the hands of one individual in the area of Trivandarum he could reasonably relocate elsewhere in the State of Kerala or elsewhere in India.
At the hearing the applicant said that because he is Christian he cannot stay in other places in India. He said furthermore that he is afraid to be in unknown places. As previously noted the applicant told the Tribunal that he left his home in Kerala for a time in 2006 and stayed with his wife in Tamil Nadu where he lived untroubled. The Tribunal does not accept that as a Christian he would not be able to relocate and live safely elsewhere in Kerala if he so chooses or in Tamil Nadu where he has lived, if only briefly on a previous occasion.
The finding that the applicant could reasonably relocate elsewhere in the State of Kerala or elsewhere in India is a finding of fact properly open to the Tribunal on the material before it. The Tribunal did not ignore the applicant’s fear of relocation; it considered and rejected that claimed fear, as was open to it. That finding of fact is not open to review: NAHI (ante). Ground three is rejected.
Ground one alleges that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction. The Court has considered the various claims above and finds no error of law. No particulars have been provided in support of ground one to support the ground. It has not been established. Ground one is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 5 July 2007
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