SZLDK v Minister for Immigration
[2008] FMCA 307
•4 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 307 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – fear of harm alleged by applicant related to a private dispute with an individual and his associates and did not have a Convention nexus – in the circumstances, no need for the Tribunal to consider question of relocation – breach of s.424A not proved – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.91R, 424, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLDK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2380 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 March 2008 |
| Date of Last Submission: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2380 of 2007
| SZLDK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He alleges that while in India he worked as a driver at a primary school and that in 2004 the school caught fire, killing many children. The applicant alleges that he provided evidence to the police against the school’s owner,
Mr Palanisamy, who was a member of the Rashtriya Swayamsevak Sangh (RSS) political party, and that the RSS subsequently threatened to kill him.
The applicant claims to fear persecution in India because he gave evidence against a member of the RSS, because of his Muslim faith and because of his political activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
24 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 107 – 110). Relevantly, they are in summary:
Protection visa application
a)from 2001 the applicant worked as a driver at the Sri Krishna Matriculation School, picking up students and assisting with other jobs like buying foodstuffs;
b)the top floor of the school was used as a kitchen and had a thatched roof;
c)on 16 July 2004 the kitchen roof caught fire and about ninety-four children were killed;
d)the headmaster, founder and some government education officials escaped but were arrested some days after by the Tamil Nadu Police. The applicant told the truth during the investigation and his evidence was considered powerful because he worked at the school;
e)school management threatened the applicant’s family to make him give a false statement. He also received threats from the school’s founder and his friends who were members of the RSS which he described as a “Hindu extremist party”;
f)the applicant went to the police and they promised to protect him and his family;
g)during the hearings, school management threatened the applicant with the help of the RSS and the State opposition party, the Diraavida Munnaetra Kalakam (DMK);
h)the applicant moved to another address and they damaged his home;
i)in May 2006 the DMK won the election and became the ruling party in Tamil Nadu. The applicant received more threatening phone calls but could not move to another state because the DMK was part of a coalition government which also ruled the whole nation; and
j)the applicant then decided to move to another country.
Application for review
On 4 May 2007 the applicant provided the Tribunal with a letter reiterating his claims including the claims already set out in these reasons. He also provided:
a)a copy of his driver’s licence;
b)an identity card stating that he was a driver at the Sri Krishna Primary School;
c)a photograph of an abandoned house;
d)a medical report dated 17 July 2004 stating that he was affected by a fire accident; and
e)two press cuttings regarding the school fire.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)he gave evidence regarding the fire to the police but was not called before the Commission of Enquiry. He did not go to court and was not summoned;
b)he was threatened with being killed if he gave evidence. The threats were from hired thugs in the RSS;
c)the police told the applicant that they would protect him, however, when the DMK came to power in 2006 the applicant was afraid that he would be murdered and went into hiding. He believes that the police support the ruling party;
d)the applicant was the only person who could say that the fire started in the kitchen and was the only person threatened by the owner. He was also the only Muslim;
e)he would be persecuted wherever he went in India because the DMK is aligned with the ruling Congress Party and they believe that killing a Muslim is good;
f)if he relocated he would have to speak another language, would need money and he could not go; and
g)the applicant worked against the DMK Minister from his village and that party would seek to persecute him for this reason also.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted certain aspects of the applicant’s claims, including that:
i)he is a Muslim;
ii)the Sri Krishna School caught fire on 15 July 2004 and ninety-four children were killed;
iii)he was the driver at the school, was present on the day of the fire and spoke to the police about the fire;
iv)Mr Palanisamy was the owner of the school, was blamed and arrested for the fire and had political connections; and
v)the police offered to protect the applicant;
b)however, the Tribunal was not satisfied that the applicant feared harm for a Convention reason and was not given police protection for a Convention reason, noting that:
i)even though the police investigation and the laying of criminal charges could well be a process separate from the Commission of Enquiry and it was possible that the applicant could be called as a witness in one process and not the other, the applicant’s evidence about the fire was not as pivotal as he claimed as he was not called to give evidence to the Commission of Enquiry;
ii)the threats the applicant received were solely aimed at preventing him from giving further evidence about the fire and were not for reasons of his religion, political opinion, imputed political opinion or for any other Convention reason;
iii)apart from the applicant’s claims, which were speculative, there was no evidence that the person or persons who threatened him were members of the RSS;
iv)there was no clear evidence about the motive of the person or persons for making ongoing threats given that the applicant had already provided information to the police;
v)the applicant provided no evidence in support of his claim that he has been called to attend court as a witness or in any capacity; and
c)given that the applicant was offered police protection while his party, the AIADMK, was in power as well as in 2006, the Tribunal was not satisfied that the police failed to provide him with protection or that there is inadequate state protection or that the police would withhold protection in the future because the applicant is Muslim, or associated with the AIADMK, or for any other Convention reason.
Proceedings in this Court
In his amended application filed in these proceedings, the applicant has pleaded seven numbered grounds.
Dealing with each of these in turn:
Breach of s.424A
The first ground alleges that the Tribunal breached s.424 of the Act, as well as s.424A. It must be concluded that the reference to s.424 is a typographical error. The allegation is based on the asserted reliance by the Tribunal on independent evidence and on claims relating to state protection.
As to that part of the allegation relating to independent evidence, such evidence of that nature as was relied upon by the Tribunal is referred to at pages 8 and 9 of its decision and can be characterised as news reports relating to the school fire and the political colour of the RSS. Given the nature of that information, it falls within the exclusions found in s.424A(3)(a) of the Act and thus no s.424A(1) obligations existed in relation to it.
Moreover, the allegation in the amended application asserts that the Tribunal relied on “[i]ndependent evidence as to the prevalence of claim about political persecution”. The independent information relied upon by the Tribunal was not information of that nature and thus this element of this ground cannot be made out on the facts in any event.
As to the second element of the allegation, which relates to state protection, the issue of state protection was, in effect, a conclusion drawn by the Tribunal from the information given to it by the applicant. Because the information relied upon by the Tribunal in reaching its conclusion was information provided to it by the applicant, it fell within the exception found in s.424A(3)(b) which means that no s.424A(1) obligations existed in relation to it. The conclusion which the Tribunal reached based on that information is not itself information as that word is understood in the context of s.424A. Consequently, the first asserted ground of review is not made out.
Tribunal failed to consider claim
In the second ground of the amended application the applicant alleges that the Tribunal failed to consider his claim notwithstanding that he gave adequate evidence to it. A consideration of the Tribunal’s decision record, as has been summarised earlier in these reasons, reveals that not only did the Tribunal consider the allegations which were made by the applicant in support of his claim for a protection visa, it accepted many of them.
The heart of the Tribunal’s decision is that, notwithstanding that it accepted many of the applicant’s allegations, it concluded that they did not have a Convention nexus. That is to say, they did not demonstrate that the applicant had a well founded fear of persecution for one of the reasons set out in the Convention. What the Tribunal found was that such harm as the applicant feared was by reason of what might be classified as a personal vendetta against the applicant by the proprietor of the school and his associates because of the evidence which the applicant might be able to give against that school proprietor. Consequently, this asserted ground of review is not made out.
Test of serious harm and relocation
In the third asserted ground of review the applicant alleges that the Tribunal failed to consider the serious harm test found in s.91R of the Act in the context of a potential relocation within India. The Tribunal specifically discussed what amounted to serious harm in the fourth paragraph on the third page of its decision. Therefore it can be seen that the Tribunal understood what the test was.
However, in the circumstances of this claim there was no reason for the Tribunal to consider whether relocation would give rise to a fear of serious harm because there was no well founded fear of persecution for a Convention reason. That being so, there was no need to consider the question of relocation, notwithstanding that it had been an issue which was mentioned during the Tribunal hearing. As relocation did not need to be considered by the Tribunal, so also it had no need to consider the test of serious harm in that context.
Tribunal did not have fresh look
In the fourth ground the applicant pleaded his claim in the following terms:
The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against m[y] case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.
The first element of this ground is that the Tribunal gave weight to some evidence rather than to other evidence. It is not for this Court to choose what weight should be given to evidence which came before the Tribunal and thus issues such as this cannot ground a finding of jurisdictional error. The weight to be allocated to evidence before the Tribunal is one solely for the Tribunal and thus this part of this ground of the amended application does not disclose a basis upon which the Tribunal’s decision might be set aside.
The second element of the fourth ground suggests, by saying that the Tribunal was preoccupied and did not have a fresh look, that the Tribunal was biased or perhaps failed to address its task in good faith. Whichever of these allegations might be being made, if either, they are not made out on the facts. Firstly, the applicant has put no evidence before the Court to substantiate such serious allegations. Secondly, a consideration of the Tribunal’s decision reveals it undertook a conscientious review of the material before it including the applicant’s application and, having considered the evidence and arguments which the applicant had placed before it, reached a conclusion which was open to it. It cannot be concluded that the Tribunal had prejudged the matter or that it failed to look at the material afresh and thus this element of this asserted ground for review is not made out.
The final element of this ground is that the Tribunal failed to consider Amnesty International country information. There was no such information before the Tribunal nor any suggestion today that the applicant has sought to put any Amnesty International information before the Tribunal.
Illogicality
The essence of the fifth allegation in the amended application is that the Tribunal acted illogically because it failed to weigh properly the effect of certain evidence which is particularised in the amended application. Although dressed as an allegation of illogicality this is, in reality, an attack on the Tribunal’s fact finding and an invitation to the Court to arrive at factual conclusions different from those reached by the Tribunal.
Is it not open to the Court to review the Tribunal’s fact finding, except in very limited circumstances. Such circumstances do not exist here. The fifth asserted ground for review does not disclose any basis upon which the Tribunal’s decision might be set aside.
Failure to consider matters
The sixth asserted ground for review alleges that the Tribunal failed to consider the threat to the applicant’s life and liberty or the impact on him of having given evidence against the school owner. As to the threats made to the applicant, these were matters central to the Tribunal’s consideration. Far from not taking them into account, it is clear that the Tribunal gave these matters weighty consideration. The argument which the applicant has with the Tribunal is that it concluded that these threats were not related to one of the reasons set out in the Convention, rather than that it failed to consider the matter at all. As a result, this element of this asserted ground for review does not disclose jurisdictional error on the part of the Tribunal.
Regrettable though this may be for the applicant, when it comes to considering whether the Tribunal erred, the impact on the applicant of him having given evidence against the school owner could be given no significance because it was not related to persecution for a Convention reason, or the fear of persecution for a Convention reason. As a result, this element of this asserted ground for review does not disclose jurisdictional error on the part of the Tribunal.
Failure to apply Convention test
The seventh pleaded ground appearing in the amended application alleges
a)that the Tribunal failed to see that the applicant satisfied the four key elements of the Convention definition;
b)that it failed to analyse properly “the future harm” the applicant might face if he returned to India; and
c)that it failed to consider or assess or carry out the “real chance test”.
The Convention test is summarised on pages 2 and 3 of the Tribunal’s decision. It is clear that the Tribunal understood the test which it had to apply and it is also clear that the Tribunal applied that test to the evidence and arguments which were before it. The applicant’s complaint in this connection is really one relating to the Tribunal’s finding on the merits of his application for a visa. In judicial review proceedings such as these, it is not open to the Court to review the Tribunal’s findings on the merits of that application. This element of this ground discloses no basis upon with the Tribunal decision might be set aside.
As to the assertion that the Tribunal failed to consider the “future harm” which the applicant might suffer were he to return to India, just as with the second element of the sixth asserted ground of review, in the absence of a Convention nexus, such future harm or impact of events on the applicant can have no practical significance for the purposes of the Tribunal’s deliberations. Consequently, even if the applicant were to fear some harm because he returned to India, because such harm arises out of what is, in essence, a private dispute unrelated to any of the Convention grounds, the Tribunal was not required to consider this issue.
As to the allegation touching on the real chance test, the Tribunal clearly understood what the test was because it discussed the test in the seventh paragraph on page 3 of its decision. Again, the facts alleged by the applicant had no Convention nexus.
Generally
Overall, the allegations made in the amended application appear formulaic and not obviously relevant in many respects to the particular aspects of this case. For this reason, many of the allegations which the applicant has made in his application fail to deal with the real issue why his visa application was unsuccessful or why his review application before the Tribunal was unsuccessful. This was that, although many of the allegations he made had been accepted by the Tribunal, they failed to disclose a Convention nexus which would justify the Tribunal in being satisfied that he met the criteria for a protection visa. That being so, the conclusion which the Tribunal reached does not disclose jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, the application should be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 March 2008
0
1
1