SZLKW v Minister for Immigration - [2008] FMCA 738

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLKW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 738

MIGRATION – RRT decision – Indian claiming fears of harm from creditors – Tribunal found no Convention nexus – no jurisdictional error – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), s.425

Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZIOG v Minister for Immigration & Citizenship [2007] FCA 538
SZIOG v Minister for Immigration & Anor [2006] FMCA 1450

First Applicant:

SZLKW

Second Applicant:

SZLKX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3067 of 2007

Judgment of:

Smith FM

Hearing date:

28 May 2008

Delivered at:

Sydney

Delivered on:

28 May 2008

REPRESENTATION

Counsel for the Applicants:

Applicant husband in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3067 of 2007

SZLKW

First Applicant

SZLKX

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who came to Australia in March 2007. On 27 April 2007, they applied for protection visas against return to India. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”.
In a statement attached to the visa application, he referred to various misfortunes in the course of conducting shops in Muslim majority areas of Ahmedabad. His mother became bedridden and required attention. An earthquake in January 2001 destroyed their house, and they had to borrow to buy a new house. Riots after the Godhara train incident in 2002 resulted in his shop being burnt. When he started a new shop, the prices of gold and silver increased, and there was a problem getting customers. His mother died in October 2006. His statement said:
After that all debt collectors had started coming home for their money. They called daily twice or thrice in a day and gave warning of my family’s life. I and my wife were afraid a lot. They sent some people and they hit me and tried to kill me. We tried to lodge complain but because of their good relation in politics we can’t do anything. Their men always follow us. We were very much frightened. …
A delegate refused the application on 19 May 2007. The delegate said that there was nothing disclosed in the applicant’s claims which indicted that the harm he faced on return to India arose from any of the five Convention reasons.
On appeal, the applicant attended a hearing of the Tribunal on 13 August 2007. He was given the opportunity to explain his claims further, in particular to explain how they related to the grounds of persecution referred to in the definition of “refugee” in the Refugees Convention.
In a decision handed down on 11 September 2007, the Tribunal affirmed the delegate’s decision. The Tribunal addressed the elements in the applicant’s claimed history, and explained why it was not satisfied that they had occurred for a Convention‑related reason.
It recognised that the applicant had sought to establish such a relationship by claiming that he had been discriminated against by members of other castes, and that other losses had occurred because he was in a Muslim dominated area. However, the Tribunal could see no evidence that his business had been specifically targeted by Muslims or any other religious or racial group in the course of the 2002 riots. It was not satisfied that the reason for the applicant having difficulty getting his customers to pay, or continuing in business, was a Convention reason.
In relation to the claim that the police had refused protection, it pointed to the absence of details about this claim, and was not satisfied that it had occurred. Nor was it satisfied that protection had been refused for the reasons claimed, that is, the political connections of the creditors. The Tribunal was not satisfied that his fear of being denied protection was well‑founded, given that he was a Hindu living in the state of Gujarat, which had an overwhelming Hindu majority and was governed by a political party, the BJP, which had strong Hindu sympathies.
The Tribunal then identified what might appear to be a complete answer to the applicant’s refugee status, by finding that it was not satisfied “that the harm the applicant may face on return to India arises from any of the five Convention reasons”. It said:
The applicant and/or his family have borrowed money to purchase a house or business, or to pay for the health costs incurred by his mother. At various points in time it appears that he and his family have been able to repay those debts before accumulating more. The latest debt for which the applicant claims he is liable and unable to pay was accrued to purchase a business which subsequently failed. The applicant claimed that the people to whom he owed money sent some people to attack him and try to kill him. The applicant did not claim that the people to whom he owed money were of a particular race, religion, country of origin or nationality nor that they were persecuting him for reasons of his race, religion, country of origin, nationality or political opinion, but simply because he owed them money.
The applicants now ask the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify as refugees or should be given any permission to stay in Australia.
The applicants have filed three documents containing their contentions.
The original application made unparticularised contentions of denial of procedural fairness, failure to observe procedures required by law, and the making of a decision “on the basis of the unreliable information”. These contentions are unexplained, except to the extent that they are covered by the applicant’s later documents, and I am unable to give them any separate meaning.
The three grounds of the applicant’s amended application contain numerous contentions of defects which might amount to jurisdictional error. I can best deal with them by isolating particular contentions.
Ground 1 criticises the Tribunal’s reasoning as showing a “harsh approach to the well‑founded fear”. However, this contention, in my opinion, is not framed in terms of any jurisdictional error, but only addresses the merits of the Tribunal’s reasoning (cf. SZIOG v Minister for Immigration & Anor [2006] FMCA 1450 upheld by Bennett J in SZIOG v Minister for Immigration & Citizenship [2007] FCA 538).
The particulars to Ground 1 and Ground 2 criticise the Tribunal’s reasoning because: “the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive”. This appears to contend that the Tribunal made a jurisdictional error of law by asking itself an irrelevant question. However, it was not irrelevant to the application of the Refugees Convention’s definition, for the Tribunal to consider the motives or reasons of the persecutors identified by the applicant. Such an issue is relevant to the required characterisation of the applicant’s fears.
If the ground criticises the Tribunal for not making findings about the applicant’s subjective state of fear, then the absence of discussion on this element does not reveal jurisdictional error, because the reasoning followed by the Tribunal did not require that issue to be addressed. Its finding that the applicant’s claimed fears did not relate to a Convention reason was a complete answer to his entitlement to the visa.
Particulars under Ground 1 explain that the applicant was “nervous and could not understand questions put by the member” when he attended the hearing. He made the same complaint to me orally today in his submissions, saying that he forgot what he wanted to say to the Tribunal. I can understand that he may have found the hearing unsatisfactory. However, he has not presented any evidence to the Court by way of a transcript or otherwise to establish to my satisfaction that he was denied the opportunity to present evidence and submissions required by s.425 of the Migration Act 1958 (Cth). He has not presented any medical or other evidence that he was incapacitated from participating satisfactorily in the hearing. On the Tribunal’s description of the hearing, he was given ample opportunity to explain his history and to respond to its concerns that his fears did not relate to the Convention reasons.
The particulars to Ground 1 also contend that the Tribunal did not address his refugee claims fully. However, in my opinion there is no basis for this contention. The Tribunal addressed the claims, such as they had been put to it. In particular, I can see no evidence that the applicant ever claimed to the Tribunal, as is asserted in the amended application and the written submission, that he had been persecuted by reason of his being a member of, or having an association with, a Hindu organisation. I am therefore not satisfied that the Tribunal misunderstood the case which was in fact before it. Nor can I find any substance for the suggestion that the Tribunal considered his claims with a closed mind or might have appeared to have done so under principles of apprehended bias (see Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425).
My conclusions indicated above also address points made in Grounds 2 and 3 of the amended application.
I am not satisfied that there was any denial of procedural fairness by reason of the applicant not being given the opportunity to understand the issues arising in the review. The issues concerning the Convention nexus of the applicant’s claims were very clearly notified to the applicant, both in the delegate’s decision and by the Tribunal in the course of the hearing.
The applicant’s written submission follows a precedent which has been prepared for presentation at show cause hearings under r. 44.12. However, today’s hearing is not such a hearing, since the application was set down for a final hearing.
I consider that I have sufficiently addressed its other arguments in my conclusions above.
I reject the additional submission that the Tribunal arrived at a decision based on conclusions “upon which there was no proper basis” and that “there is no proper basis for the rejection of the applicant’s evidence”. In my opinion, the Tribunal’s conclusions of fact were conclusions which were open to it upon the evidence before it.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 June 2008