SZLBX v Minister for Immigration - [2007] FMCA 2072

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2072

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no Convention nexus with harm suffered and feared in future by the applicant – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
NAHI v Minister for Immigration [2004] FCAFC 10

Applicant:

SZLBX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2237 of 2007

Judgment of:

Driver FM

Hearing date:

10 December 2007

Delivered at:

Sydney

Delivered on:

10 December 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr A Cox
DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2237 of 2007

SZLBX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 31 May 2007 and was handed down on 26 June 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of religious persecution. Background facts concerning the applicant’s protection visa claims and the Tribunal decision on them are conveniently summarised in written submissions filed on behalf of the Minister on 30 November 2007. I adopt as background for the purposes of this judgment paragraphs 2 through to 7.3 of those written submissions:
The applicant is a male citizen of India who arrived in Australia on 1 January 2007.[1]
[1] court book (“CB”) 29, 30
The applicant applied for a protection (class XA) visa on 8 February 2007.[2] His claims were set out in a statement accompanying the application.[3] The application was refused on 28 February 2007.[4]
The applicant applied to the Tribunal for review of the original decision on 21 March 2007.[5]
The applicant gave oral evidence before the Tribunal on 4 May 2007.[6] The Tribunal handed down its decision on 26 June 2007.[7]
The applicant's claims
The applicant claimed to fear persecution because of conflict he had with persons working in a garage opposite where he lived in Mumbai. The applicant claimed that the people working in the garage were not of good character and involved in illegal activities such as drug and arms dealing. At the hearing, the applicant claimed that as he was Hindu and he believed they were Muslim, the Convention reason for the persecution was religion.
The decision of the Tribunal
The Tribunal accepted the claims of the applicant in relation to his conflict with the "garage people" but it was not satisfied that the serious harm feared by the applicant was for a Convention reason.
The Tribunal was not satisfied there was any reason for the "garage people" to threaten him other than to stop his complaints. Similarly, the Tribunal found any continuing threats or physical harm in the reasonably foreseeable future would not be for a Convention related reason.
The Tribunal was not satisfied on the basis of the evidence before it that the "garage people" were Muslims; it considered this conclusion to be little more than speculation on the applicant's part.
The Tribunal found there was no evidence to establish the police had failed to protect the applicant or take action on his behalf for any Convention related reason. This finding was supported by country information, on the basis of which the Tribunal was also not satisfied that the police would fail to protect the applicant in the future because he was a Hindu or for any other Convention reason.
[2] CB 1-34
[3] CB 27-28
[4] CB 37 -44
[5] CB 45-48
[6] CB 57-58
[7] CB 73-83
The applicant relies upon his judicial review application filed on 20 July 2007. He has had the opportunity to amend that application but has chosen not to. There is one ground in the application and a number of particulars which refer to key findings by the Tribunal. The applicant appears to be asserting that his claims were not properly assessed. He also asserts a breach of s.424A of the Migration Act1958 (Cth), but he has not been able to point to any information that was required to be disclosed pursuant to that section and which was not disclosed. Apart from the application and the Minister’s written submissions, I have before me the court book filed on 8 August 2007.
It is apparent from the material and from the applicant’s oral submissions today that the applicant’s complaint is really with the outcome of his case before the Tribunal. The applicant was successful in persuading the Tribunal that he was at risk of serious harm in India, but he was unsuccessful in persuading the Tribunal that there was a Convention nexus with that harm.
The Minister submits, and I accept, that there is no error by the Tribunal in its finding concerning the absence of a Convention nexus. I agree with and adopt for the purposes of this judgment, with necessary amendments, paragraphs 10 to 12 of the Minister’s submissions:
There is no error in the Tribunal’s finding that there was no Convention nexus in relation to the harm feared by the applicant from the "garage people". It was open on the applicant's evidence for the Tribunal to reject the applicant's claims that the "garage people" were targeting the applicant due to his religious beliefs.
Importantly, the Tribunal also considered whether the authorities had failed in their duty to protect the applicant[8], and concluded that this had not occurred.
In so far as the applicant is seeking to challenge the factual findings of the Tribunal, this is no part of the function of this Court in dealing with an application for relief: see NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40 - 42.
As to the applicant's claim that the Tribunal failed to put sufficient evidence or references in its decision, this ground must fail. It is for the applicant to satisfy the Tribunal that he is a person to whom protection obligations are owed. In the present case, on the basis of applicant's oral evidence and the country information before it, the Tribunal was not so satisfied.
[8] CB 82.5
I also agree with and adopt for the purposes of this judgment, with necessary amendments, paragraph 13 of the Minister’s submissions concerning the operation and application of s.424A. There is no breach of s.424A as no s.424A(1) obligations arose in the present case. The information relied upon by the Tribunal was country information and the applicant's oral evidence at hearing. As a result, this information falls within the exclusions set out in s.424A(3)(a) and s.424A(3)(b) respectively.
The Tribunal did not make any finding about whether the applicant could avoid the risk of harm he faced by relocating within India. There had been quite extensive discussion at the Tribunal hearing about that issue and in the course of oral argument the applicant expressed concern that no finding was made. The applicant had put to the Tribunal that he was at risk of harm from the “garage people” anywhere in India. I do not rule out the possibility that the Tribunal was persuaded by his argument. It is equally possible, however, that the Tribunal regarded the problem as a local one, but considered it unnecessary to consider the issue of relocation in the absence of any Convention nexus with the harm faced by the applicant.
The Tribunal appears not to have been in any doubt about that lack of a Convention nexus. It would only have been if the Tribunal entertained sufficient doubt to require a consideration of what the position would be should the Tribunal be wrong on that point that a finding on relocation would have been called for. While the applicant and the Court might have been assisted by a Tribunal finding on relocation, in the circumstances of this matter no such finding was required.
I find that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. Scale costs under the Federal Magistrates Court Rules 2001 (Cth) would be $5,000. The Minister seeks $2,600. The applicant did not wish to be heard on costs. I have no difficulty in accepting that costs of at least $2,600 have been properly and reasonably incurred on behalf of the Minister when considered on a party-party basis.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 12 December 2007