SZKPB v Minister for Immigration
[2007] FMCA 1257
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1257 |
| MIGRATION – RRT decision – Indian claimants fearing persecution by Hindu extremists – falsely accused of murder – Tribunal found no Convention nexus – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.91R(1)(a), 425, 476
| First Applicant: | SZKPB |
| Second Applicant: | SZKPC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1430 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 24 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 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 r.44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1430 of 2007
| SZKPB |
First Applicant
| SZKPC |
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 4 May 2007, in which the applicants apply for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 March 2007 and handed down on 10 April 2007. The Tribunal affirmed a decision of a delegate made on 23 November 2006, refusing to grant protection visas to the applicants. The applicants are a husband and wife who made refugee claims arising out of the same circumstances. The Tribunal referred at times to the applicant husband as “the applicant”, and I shall do so also.
The application to the Court was returnable before me on 29 May 2007, when the applicants attended and had the assistance of a Malayalam interpreter. The nature of the proceedings was explained to them in an information sheet and by me, and they were given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. They were warned that their application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
They have received advice, and have filed an amended application which I shall consider below.
The applicants arrived in Australia in September 2006, and on 11 October 2006 filed their applications for protection visas. They were assisted by a person who was not a migration agent, and their reasons for seeking protection in Australia were set out in a typed statement of the applicant husband attached to the application.
No corroboration of their claims was provided either to the Department or on review to the Tribunal, but the Tribunal said that “although elements of the Applicant’s oral evidence appeared exaggerated”, it accepted the history presented by them in the written statement and orally.
In short, the applicants said that they were Catholic Christians from India, who had worked in Kuwait for many years and had returned to India in 2005. They commenced a supermarket business near a Hindu temple. During a festival, the members of the temple committee requested donations, and were not satisfied with what was offered. One particular young man, who was a member of the youth division of the BJP and of the RSS, demanded money and “he and his friends all together hit me and my staffs”. The applicant complained to the police, and they investigated his complaints and arrested the young man called Babu. He was released through political influence on the local police, and then made more threats against the applicant. However, the applicant continued opening his shop, despite statements from the local leader of the BJP that “we won’t allow to harm anybody who is working for B.J.P especially Babu. Also you are try to harm Hindu’s business people, in this area”. It was suggested that he should close his shop. The applicant again complained to police, who attended and sent away the people troubling him.
Later that day, he learned that Babu had been murdered, and the applicant was questioned by police, and was concerned that the police might implicate him in the murder. However, they released him, and said that they had no evidence to arrest him. However, the applicant’s shop was looted, and he was threatened, because he was blamed for the murder by BJP leaders. In one incident, his wife was injured by being hit, and the police were slow to investigate on that occasion.
The applicant said that he then went to Bombay, where he started a new business with his brother. However, on one occasion a person stabbed him after blaming him for the murder of Babu. The applicant said he was advised “that B.J.P and R.S.S won’t allow you to live or make business in India”, so he came to Australia.
According to the Tribunal’s description of the hearing which the applicants attended on 16 February 2007, the Tribunal discussed the motivations of the people whom the applicants now feared. The Tribunal’s description of this part of the hearing is:
At the hearing, the Tribunal asked a number of questions going to the motivations of Babu and his supporters at the time they were harassing him and disrupting his business. In answer to these questions, the Applicant explicitly said that the motivation behind the actions of Babu and his cronies was to protect the market share of their friends. The Tribunal put to the Applicant that on his evidence it was difficult to see his “religion” or “political opinion,” real or imputed, as essential and significant factors in the situation involving the harm described. Essentially, the Tribunal questioned the relevance of the Applicant’s claims to the Convention. In response, the Applicant did not argue or illustrate Convention nexus, but instead argued the gravity of the danger he faced in the relevant locations over the period described.
At the hearing, the Applicant gave evidence about the police enquiries following Babu’s death. He indicated that in spite of the influence of Babu’s political and social cronies, the police took no action against him beyond making some enquiries.
At the hearing, the Tribunal asked a number of questions going to the motivations behind the actions of Babu’s cronies and supporters after Babu’s death. In response to these questions, the Applicant explicitly said that the motivation behind the actions of Babu’s supporters and cronies was to seek revenge, albeit misplaced, for the death of Babu. He said he believed that in the eyes of Babu’s followers, both his religious background and his history as a person who did not want Babu to close or exploit his business gave him a motive to kill Babu. The Tribunal put to the Applicant that, on his evidence, it was difficult to see his “religion” or “political opinion,” real or imputed, as essential and significant factors motivating the harm described. Again, in response, the Applicant focused on the gravity of the harm he claimed to fear, highlighting the severity of the attack on himself and his wife. The Applicant confirmed that Babu’s supporters really believed that he killed Babu and that this was why they were pursuing him in India.
After the Tribunal put to the Applicants that their claims might not be Convention‑related, the Applicant’s wife said that her husband would nevertheless have difficulty looking after his family under the pressure he faced.
In brief “Findings and Reasons”, the Tribunal accepted the applicants’ history as “a generally factual one”. It said:
However, the Tribunal finds that whilst the religion and politics of the perpetrators provides a backdrop to the events described, the essential and significant factors motivating the harm described in this application are individual personal, commercial and criminal factors, and not Convention‑related factors.
The Tribunal’s reference to a test of “essential and significant factors” adopts the language of s.91R(1)(a) of the Migration Act, and indicates that the Tribunal was addressing a relevant legal requirement.
The Tribunal considered the applicant’s evidence about the responses of the police, and noted that despite the influence of the local BJP, the police had responded appropriately to the accusations of murder against the applicant. The Tribunal made a finding in relation to State protection:
On the question of state protection, the Applicants have claimed that the authorities did not provide them with adequate protection, but the evidence before the Tribunal does not satisfy it that the authorities failed or would fail to protect the Applicants for Convention‑related reasons.
The Tribunal concluded:
On the evidence before it, the Tribunal is not satisfied that the Applicants face a real chance of Convention‑related persecution in India. The Tribunal is not satisfied that the Applicants’ claimed fear of Convention‑related persecution is well founded. They are not refugees.
(emphasis in original)
The Tribunal’s reasoning was therefore clear. It was that the applicants did not fear Convention‑related harm from non‑State agents, and that, to the extent that the authorities might not be able to protect them from this harm, the reasons for any failure of protection in the past or future would not be Convention‑related.
In my opinion, taking into account the evidence apparently given by the applicants to the Tribunal, its reasoning was well open to the Tribunal, and I can see no arguable ground of jurisdictional error affecting its reasoning. I am unable to identify any procedure required of the Tribunal which it has failed to observe.
The applicants’ amended application repeats grounds which were contained in their original application and adds two paragraphs. I accept the Minister’s submissions that most of the grounds argue with the merits of the Tribunal’s conclusions and do not raise any jurisdictional error.
The suggestion in paragraphs 3 and 4 of the amended application, that the Tribunal did not take into account their nervousness at the hearing, is not given substance in any of the material before me. Moreover, the Tribunal’s comment that their evidence was “exaggerated” was not a reason upon which the Tribunal decided their claims. I can see no argument available to the applicants that the Tribunal failed to afford them the hearing required by s.425 of the Migration Act.
The complaint in paragraphs 5 and 7 of the amended application, that the Tribunal “has been hasty in giving the decision against the applicants”, is difficult to understand and has not been explained to me by the applicants today. The Tribunal followed the normal timetable for matters in the Tribunal, and I consider that the applicants had ample opportunity to present their case to it.
I am not persuaded that they have any argument which could show that the Tribunal failed to consider any element in their claims or evidence.
In their submissions to me today it was complained that the Malayalam interpreter at the Tribunal hearing “might not have interpreted” their evidence correctly. However, they have presented to the Court no particulars nor evidence giving substance to this complaint, and I am not satisfied that it is reasonably arguable.
Their other submission today was to reaffirm that they are seeking protection in Australia, and fear the problems they face in India. However, the Court does not have power to decide for itself whether they qualify for protection visas or should otherwise be given permission to stay in Australia.
Considering all the material before me, 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 r.44.12(1)(a).
I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 9 August 2007
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