SZLBX v Minister for Immigration and Citizenship

[2008] FCA 887

FEDERAL COURT OF AUSTRALIA

SZLBX v Minister for Immigration and Citizenship
[2008] FCA 887

SZLBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2527 OF 2007

RARES J
9 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2527 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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	NSD 2527 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	9 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE JUDGMENT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing constitutional writ relief to the appellant in respect of a decision of the Refugee Review tribunal affirming a decision of the delegate of the Minister not to grant the appellant a protection visa:  SZLBX v Minister for Immigration [2007] FMCA 2072.

2. The appellant is a national of the Republic of India who arrived in Australia in early January 2007.  The delegate refused to grant him a protection visa in February 2007 and he applied to the tribunal for a review of that decision.  On 31 May 2007 the tribunal signed its decision which it handed down on 26 June 2007.

   THE APPELLANT’S CLAIMS

3. In his application for a protection visa, the appellant said that he was a business man who lived in Mumbai and ran a garment business.  He travelled extensively throughout the world including to Australia, in running his garment business.  He claimed to have belonged to the Hindu religion.  The appellant claimed that in Mumbai he lived in a building opposite a series of motor garages but that the people who worked in the garages were not of good character and often made difficulties for local residents, including himself and his family.

4. A dispute arose between the residents of the building in which the appellant lived, so he claimed, and those operating the garages.  The building occupants built a wall in between the garage and their building and then constructed a Hindu temple inside the new compound.  He claimed the garage operators became resentful because they had to park their cars illegally on the street and were subjected to fines and having them towed way by the police.  When he came home one night, he found his wife in a distressed state saying that the garage people had come to their home.  She told him that the garage operators wanted him to get rid of the wall and temple in the compound so they could park their cars and had threatened her if that did not occur.

5. He said he was upset by this, went to the garage people and got into a fight, in which he was severely beaten.  He complained to police, so he claimed, but the police inspector told him that the police could not help and suggested that he compromise and did what the garage operators said.  He said that he gave up trying to discuss matters with the police because they were corrupt and that the next day, people from the garages stopped him on his way and threatened him saying that he should not go to the police for help or he would be killed.  He said they pointed a gun at him.

6. He also claimed that a few days later the garage operators began to throw cow meat and bones inside the walled area in front of the temple, being refuse from their meals.  He claimed they were Muslims.  He said this upset him because the cow is holy for Hindus and he went to ask them calmly not to do this, but was again beaten and severely hurt.  He claimed that he had fled to a friend’s house, when his wife had then telephoned him crying that the people had come with guns looking for him and had threatened his wife and family.  He claimed that his wife and relatives suggested that he go away for a while, as the garage operators would find the appellant and kill him, which was a normal way of their behaving.

7. He claimed that staying in India was not a good idea for him because the garage operators had contacts everywhere.  He said he went straight to his travel agent and applied for an Australian visa because his friends had suggested to him that this was the best place to live.  He left his family with his brother and came to Australia to live what he planned what would be a peaceful life.  He said that when he got off the plane he was interviewed by immigration officers here for about six hours.  He claimed the officials told him that a complaint had been made against him before he arrived in Australia and that he was not coming to Australia with good intentions.

8. He claimed to fear that if he were returned to India, the garage operators would take revenge and kill him.  He claimed that they had no fear of the police because they were involved with drug and arms dealings and had many contacts in the political and underworld.

   THE DELEGATE’S DECISION

9. The delegate considered the application and said that the appellant had claimed to fear harm from the hands of local thugs who owned garages and threatened him because he opposed them utilising his building’s compound where he lived for their own parking purposes.

10. The delegate accepted that the appellant had come into contact with local thugs who wanted to harm him, but she concluded that the thugs’ motivations were not political or religious.  She concluded that the motive for harm feared by the appellant appeared to be purely criminal on the part of the people who wanted to harm, and accordingly, no link to a Convention reason had been established so that it was impossible to conclude that he had a well-founded fear of harm for a Convention reason.

    THE PROCEEDINGS BEFORE THE TRIBUNAL

11. The tribunal had a hearing in which the appellant gave evidence.  It said that it had carefully examined his claims in his protection visa application and the review application and in his oral evidence.  The tribunal concluded that it was not satisfied that the appellant’s evidence established he was the subject of threats of violence because of Convention reasons.  It was, however, satisfied that he had had a disagreement with the persons located near where he lived in Mumbai, that the disagreement escalated and he was threatened with physical violence.

12. The tribunal also was satisfied that the appellant genuinely feared serious harm, but it said that it was not satisfied that the harm feared by him was for one or more of the reasons in the Convention.  Additionally, the tribunal found that it was not satisfied that the police had failed to assist the appellant for a Convention reason.  The tribunal was satisfied that there was a dispute between the appellant and the garage operators, but that it was not satisfied that a reason for the dispute was anything other than to threaten the appellant so as to make him stop complaining about where they parked their cars and to have him demolish the wall.

13. The tribunal was satisfied that the appellant was not subjected to threats for the reasons of his religion or any other Convention reason by persons whose the identity never established to its satisfaction.  In particular, the tribunal found that while it was satisfied the appellant was a Hindu, it was not satisfied, on the basis of the available evidence, that the persons who had made the threats against him were Muslims.  The tribunal pointed to the fact that the appellant was unable to provide it with any detailed information about the people who had made the threats against him, other than that they worked in the garages nearby.  It pointed also to the fact that the appellant was unable to name garage or any of the workers, despite having lived in close proximity to them for a number of years.  It concluded that the claim that they were Muslims seemed to be little more than speculation on his part based on the fact that he believed that it was people in the garage who had thrown the cow bones over the wall in the area near the Hindu temple.

14. The tribunal said that even if it were the fact that the garage operators had thrown cow bones over the wall, it was not satisfied that that act established their religion.  It noted that other people could have also engaged in behaviour aimed at upsetting Hindus.

15. Nonetheless, the tribunal accepted that the appellant might well be the subject of continuing threats from the garage operators if he did not acquiesce in their demands.  It said that it was not satisfied that any threats or attempted physical assault by the garage people would be for any reasons other than their desire to have the wall removed and to stop the appellant complaining, possibly also to make him move away so that they could park their cars without interference.  The tribunal found that it was not satisfied that the garage operators would attempt to harm him for any Convention reason.

16. The tribunal also considered the action, or rather inaction, of the police to assist the appellant.  It said that it was not satisfied that his evidence had indicated that the police had failed to provide him with protection for a Convention reason.  It recorded that the appellant’s evidence was that he had complained that the police had come to investigate, but the garage operators ran away and the police said there was no one they could arrest.  While it noted that the appellant said he believed that the police had been bribed by the garage operators, it was not satisfied that his evidence established that the police’s failure to protect him, or arrest the garage operators following their attack on him, was as a result of his religion or any other Convention reason.  It noted that the country information showed that India’s penal code prohibited and punished violation of standards of tolerance and non-discrimination based on religion or belief. While it accepted that police in India were subject to corruption, it found that following then recent incidents of Hindu-Muslim riots, the police had sided with the Hindu majority and that the appellant was a Hindu and thus one of that majority.

17. The tribunal noted that while it accepted the police may have difficulty bringing the perpetrators of such offences to justice and may be inefficient and often corrupt, it was not satisfied that the police would fail to protect the appellant in the future because he was a Hindu or for any other Convention reason.  Accordingly, it was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention.

    THE PROCEEDINGS BEFORE THE TRIAL JUDGE

18. The appellant then sought constitutional writ relief against the decision of the tribunal.  He essentially put forward three grounds to the trial judge, namely that the tribunal had:

    (1)made a jurisdictional error by making incorrect findings of fact;

    (2)failed to give him particulars of information, which may be adverse to him and which may have been a reason, or part of a reason, for which it might find against him in contravention of its obligations under s 424A of the Migration Act 1958 (Cth);

    (3)not acted fairly and properly to provide justice in the proper assessment of the appellant’s claims.

19. His Honour dismissed all three grounds.  As he said, the appellant’s complaint was really with the outcome of his case before the tribunal, in that he had failed to persuade it of a nexus between the harm which the tribunal found he both feared and had suffered, and a Convention reason.  His Honour found that there was no jurisdictional error in the way in which the tribunal arrived at its conclusion that it was not satisfied that the appellant had established a nexus to a Convention reason in respect of the harm he had suffered and claimed to fear.

20. His Honour also found that there was no failure to comply with s 424A. The only information relied on by the tribunal, other than the appellant’s oral evidence at the hearing, was country information, each of which fell within the exceptions in s 424A(3)(a) and (b).

21. The trial judge also observed that the tribunal had not made a finding about whether the appellant could avoid the risk of the harm he faced by relocating within India.  As he said, the tribunal did not appear to have been in doubt that there was a lack of a Convention nexus and, for that reason, there was no occasion to make a finding concerning relocation.  I am of opinion that his Honour’s reasons were correct.

    THIS APPEAL

22. In his notice of appeal to this court, the appellant advanced the grounds put to the trial judge to which I have referred in general terms.  I am satisfied that there is no substance in those grounds and they should be dismissed.

23. The appellant also sought to raise a number of new grounds in his notice of appeal.  The Minister objected that he should not be allowed to do so, on the ground that they were plainly without substance.  It seems to me that none of the grounds could possibly succeed. 

24. The first of the new grounds was that the tribunal emphasised irrelevant questions during the hearing and ignored the political background which put the appellant’s life at risk and thus ignored relevant material or failed to take into account relevant material.  There is no material before me where it can be seen that the appellant had raised any political question attracting a Convention nexus to the harm that he claimed.  Rather, he put forward a claim of having a well-grounded fear based on reasons of religion.  His claim was that he was a Hindu and, among other things, had been involved in building a temple and had been subject to violence by the garage operators who were Muslims.  His allegations, which were not accepted by the tribunal, were that the perpetrators of the violence and threats were Muslims or that the perpetrators were acting in the way the tribunal found they had for reasons of the appellant’s religion.  In my opinion, that proposed new ground is hopeless and would be dismissed.

25. The second new ground alleged that there had been a lack of procedural fairness because the tribunal’s manner of dealing with the appellant’s case was identical with its manner of proceeding in litigation known as Muin v Refugee Review Tribunal (2002) 190 ALR 601; 76 ALJR 966.

26. As the ground in the notice of appeal asserts, in Muin 190 ALR 601, the applicant for review had been misled into believing the tribunal had read some information, which had been in particular documents, but in fact had not done so and had not drawn to the applicant’s attention any adverse material to permit him to comment on it. First, this ground is bereft of any particulars of a document or documents which the appellant asserts the tribunal took into account but failed to draw to his attention, or which it said it did have before it, but had failed properly to consider. In my opinion, this ground has nothing to do with the facts of the case and should be rejected.

27. The third new ground is that the decision of the tribunal was affected by jurisdictional error because the tribunal did not take into account “certain relevant consideration” or “integers central to the [appellant’s] claim.”  Again, whatever those certain considerations or integers were, they are not specified.  Having read the tribunal’s decision for myself, I am unable to identify any basis upon which this claim could be sustained and I reject it.

28. Next, the appellant sought to argue that the tribunal failed to carry out its review function properly because it did not consider the intimidating pressure from Muslim thugs and did not consider his claim that the garage operators would kill him if he returned to India.  Again, in my view, this ground has no substance.  First, the tribunal did consider and accepted the appellant’s claims of the thugs’ behaviour and the reality of his fears as to its continuation.  Secondly, for the reasons it gave, in respect of which I can see no jurisdictional error, it was not satisfied that the perpetrators were Muslims or that they were inflicting and threatening harm on him for a Convention reason.

29. The last of the appellant’s new grounds argued that the tribunal applied a wrong test, because, so he asserted, it required independent evidence of a fact before it would accept a claim made by him.  He contended that the tribunal placed too high an onus of proof on him and failed to give him the benefit of the doubt, and secondly, the tribunal left out individual elements of his claims and merely tested whether they individually amounted to persecution, rather than looked at the claim as a whole.  Again, having read the tribunal’s reasons, I am unable to identify any basis upon which either of those allegations has any substance.

30. It follows that I am of opinion the appeal fails.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        12 June 2008

The Appellant:	Appeared in person
Solicitor for the First Respondent:	Z McDonald, DLA Phillips Fox

Date of Hearing:	9 May 2008
Date of Judgment:	9 May 2008