SZLNG v Minister for Immigration
[2008] FMCA 885
•25 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 885 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) ss.91R, 424A, 425, 427, 429A |
| SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicants: | SZLNG, SZLNH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3251 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3251 OF 2007
| SZLNG, SZLNH |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 2 October 2007 affirming a decision of a delegate for the first respondent not to grant the applicants' protection visas. The applicants are husband and wife and citizens of India. Only the applicant husband made claims under the Refugees Convention as amended by the Refugees Protocol, for convenience he is hereafter referred to as the applicant.
In a statement accompanying the protection visa application the applicant claimed to have been a shopkeeper who borrowed money to open his business and purchase stock. He claimed his debts grew, customers did not pay him and he was unable to pay creditors (in particular, the dealers from whom he bought cloth). The applicant claimed that one of the dealers came to his shop with what he described as “7 – 8 criminal like men. They were all muslim by cast. Their boss was also muslim, Latif” (sic). He claimed he was warned by Latif to repay the dealers the amount owed “in 10 days otherwise he will kill me”. He unsuccessfully sought to borrow money to repay his debts. He claimed that he and his parents were threatened by Latif. The applicant claimed they went to another part of India where they were helped by a friend. He claimed he later encountered a member of Latif’s gang who suggested he join the gang, that he was “buried under debt” and that on the advice of his friend he left India and came to Australia.
The application was refused by a delegate of the first respondent who found that the applicant’s claimed fear of retribution was due to his “failure to repay money owed … not based on his race, religion, nationality, political opinion or membership of a particular social group” and that there was no evidence of an inability to obtain state protection.
The applicant sought review of the delegate’s decision by the Tribunal. He was invited to attend a Tribunal hearing. He sought an adjournment of the hearing date due to medical and financial reasons and requested that the hearing be conducted in Griffith. The Tribunal granted the applicant's request for an adjournment and conducted the hearing by way of video link between the applicant in Griffith and the Tribunal member.
In its reasons for decision the Tribunal outlined the claims made by the applicant in connection with the protection visa application and in oral evidence at the Tribunal hearing. It recorded that it asked the applicant why he was fearful of returning to India and that he referred to his business difficulties and indebtedness to his creditors (who had started to threaten and harass him) and claimed that he owed a large amount of money to a trader who employed “professional” people to extract repayments from him.
The Tribunal recorded that when it again asked the applicant why he did not return to India, he said “because of his business related tensions, he was being threatened and because of that he got blood pressure. Thugs harassed him” and that he feared that if he did not pay the money back they would “hire someone to kill him”. He said he had been threatened and he was scared. The Tribunal put to the applicant that essentially it appeared he was fearful of people to whom he owed money which had nothing to do with any Convention reason.
It recorded that he said this was “true, but he has a fear for his life from these people who are “professionals” and have many connections”.The Tribunal noted that in his protection visa application the applicant claimed that the people who threatened him were Muslims. When it asked the applicant why this was significant, he said that they told him they had “orders from someone else”. When asked again what was the significance of the people who threatened him being Muslims, he said they “were demanding money” and “received a commission for repayments extracted and could have harmed him”. The Tribunal again put to the applicant that his claims did not appear to be Convention-related and his response was that they “have not attacked him yet, but maybe they will”. The Tribunal also raised with the applicant the issue of possible relocation in India.
In its findings and reasons the Tribunal summarised the applicant's claim as a claim that he had “accumulated a lot of debt” in the course of running a clothing shop business, that he was “unable to repay his debts and his creditors put pressure on him and demanded repayments”, that he was threatened and harassed by thugs engaged by his creditors and that he feared being harmed by his creditors if he were to return to India.
The Tribunal accepted that the applicant had accumulated debt as claimed and that creditors put pressure on him and also that one of the “creditors hired debt collectors who threatened and harassed [the applicant] and his family in order to extract repayment”. However, it found “nothing in his evidence to suggest that the cause of his financial situation, the debts he had accumulated, and the threats … were in any way Convention related”. Nor, according to the Tribunal, was there anything in the applicant's evidence to suggest that the harm he feared was Convention related, finding that his fears related to his financial situation and inability to repay his debts and that the threats were levelled against him solely for this reason and not for a Convention reason.
The Tribunal addressed the fact that in the statement accompanying the protection visa application the applicant had claimed that the debt collectors were “criminal-like” men who were Muslim by caste.
It recorded its questioning of the applicant and his responses as to the significance of this at the hearing. It found based on the applicant’s responses that the religion of the creditors or debt collectors “clearly” had nothing to do with the threats the applicant had received and that the treatment he was subjected to was essentially and significantly motivated by his creditors' desire to recover the money owed.The Tribunal also found there was no evidence to suggest that the applicant was or would be denied State protection for a Convention reason, despite his claims about the debt collectors' connection to the police. It noted that while the applicant had mentioned in passing that his father was active in local politics, there was nothing in his evidence to suggest his fears were in any way connected to this involvement.
The Tribunal concluded that the applicant had not suffered harm in the past and his fear of future harm was not for a Convention reason that could be identified on the evidence before it. Nor was it satisfied that any failure by the State to protect the applicant would be for a Convention reason. On the evidence before it the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this Court on 18 October 2007. He relies on an amended application filed on 30 January 2008. He did not file written submissions and he did not address the grounds in his amended application or the Tribunal decision or procedures in oral submissions.
The first ground in the amended application is that: “the tribunal has wrongly applies (sic) the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution the applicant claims (sic)”. The particulars to this ground are that “Section 91R(1)(b) and (c) of the [Migration] Act requires the persecution to be of serious harm and systematic and discriminatory”. The Tribunal did not have to make findings as to whether the harm the applicant claimed to fear, or indeed the harm he had suffered, was sufficiently serious to amount to persecution, or involved systematic and discriminatory conduct because, as set out above, it was not satisfied that the harm that the applicant feared was for a Convention reason or that any failure by the State to protect the applicant would be for a Convention reason. This ground is not made out.
The next paragraph, which I considered as either part of the first ground, as a separate ground or as part of ground two, is that: “The tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim (sic) and therefore failed to apply the correct test in accordance with s.424A(1) of the Migration Act”. There is a reference to the High Court decision in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294. Ground two also alleges that there was a failure to comply with s.424A(1) of the Migration Act 1958 (Cth) without clarifying what the information was which had to be put to the applicant. Neither aspect of these contentions establishes jurisdictional error. The relevance of SAAP to the facts in this case is not apparent. In particular, there is nothing to indicate that this was a case in which another person gave evidence to the Tribunal which had to be put to the applicant. I note in that respect that the Tribunal recorded that the applicant's wife had not accompanied him to the hearing.
The claim that the Tribunal had to provide opportunities to the applicant does not establish jurisdictional error. The Tribunal afforded the requisite opportunity to the applicant under s.425 of the Act in extending an invitation to him to attend a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. There is nothing in the material before the Court to indicate any failure by the Tribunal to comply with its procedural obligations in relation to such an invitation. I note that when the applicant sought an adjournment and that the hearing be conducted in Griffith, the Tribunal exercised its power under s.427, adjourned the hearing and allowed the applicant to give evidence by way of a video link from Griffith in accordance with s.429A of the Act.
The only evidence of what occurred in the Tribunal hearing is the Tribunal's reasons for decision and on that material it is apparent that the Tribunal put to the applicant the dispositive issues in relation to the decision under review in particular, the absence of any Convention nexus to his claims (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). In any event, that issue had been raised in the delegate's decision. There is nothing in the Tribunal’s account of the hearing to indicate that the applicant did not have the necessary opportunity to present his case and address the Tribunal's concerns.
As to s.424A of the Act, insofar as it is relevant to have regard to the decision itself, it was essentially based on the Tribunal’s inability to be satisfied on the information before it, in particular the applicant's oral evidence, that there was any Convention nexus to the harm feared or that any failure by the State to protect the applicant would be for a Convention reason. It is well established (as the majority of the Full Court of Federal Court stated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and as was approved in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190) that information for the purposes of s.424A does not encompass the Tribunal's subjective appraisals, thought processes or determinations.
It appears that the applicant's contention is that the Tribunal used unparticularised adverse information in the protection visa application. Such claim is not made out on the material before the Court. While the applicant claimed in his protection visa application that the people who threatened him were of Muslim caste, when the Tribunal twice asked him at the hearing about the significance of the religion of those who threatened him, his responses were that they told him they had orders from someone else and that they were demanding money and could have harmed him. On the applicant's own evidence at the hearing the Tribunal found that the religion of his creditors or the debt collectors had nothing to do with the threats he received and that the treatment he was subjected to was essentially and significantly motivated by the creditors' desire to recover the money owed. It cannot be said that the information in the protection visa application statement in relation to the Muslim caste of those who threatened him “would be” the reason or part of the reason for affirming the decision under review within s.424A(1). Nor has any other information in the protection visa application been identified such as would undermine the applicant's claims in the sense considered in SZBYR or otherwise constitute information within s.424A(1). No failure to comply with s.424A(1) is established on the basis contended for in the amended application.
The final ground in the amended application commences: “The tribunal has importantly dealt with the aspect of the applicant's claim relating to State tolerance and complicity of the applicants religion and membership of a particular religion or social group and as a result of all he faced financial hardship, to whom Australia has protection obligations as a member of such group”. It is not entirely clear what is meant by this aspect of ground three. It seems to suggest that the Tribunal failed to deal with an aspect of the applicant's claims based on religion or membership of a particular social group. As set out above, despite the reference to the Muslim caste of those who threatened him, there is nothing in the material before the Court to indicate that the applicant made or that the material before the Tribunal raised, a claim based on his religion. In any event the Tribunal specifically considered but rejected the possibility that the religion of the creditors or debt collectors had anything to do with the threats or the treatment that the applicant had received.
Nor is there anything to suggest that the applicant made some other claim based on a particular social group beyond what was considered by the Tribunal. The difficulty that the applicant faced was that the harm that he claimed he had experienced and that he feared was not shown to be for a Convention reason. This aspect of the final ground is not made out.
Ground three also takes issue with what is said to be a Tribunal conclusion that the applicant could relocate in other parts of India. This ground is clearly misconceived. The Tribunal did not make a relocation finding, albeit it recorded that it raised with the applicant the possibility of relocation during the Tribunal hearing. No jurisdictional error is established on this or any of the other bases contended for by the applicant.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the general rule that the unsuccessful applicant should meet the costs of the respondent. The respondent seeks costs in the sum of $2,500. The applicant told the Court that he was not working and that he did not have that amount of money. It is perhaps worth observing for the benefit of the applicant that the amount that is sought is at the lower end of the range of costs that are normally sought in matters of this nature. I note in that respect the provisions of the Federal Magistrates Court Rules in relation to an appropriate amount for costs in matters of this nature. In light of the nature of this and other similar matters the sum of $2,500 is in fact an appropriate amount. The applicant's lack of funds is not a reason for not awarding costs of an appropriate amount, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 11 July 2008
0