SZLPI v Minister for Immigration
[2008] FMCA 1069
•1 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1069 |
| MIGRATION – Review of RRT decision – where applicant witnessed the murder of two politicians and was threatened over the murders – where Tribunal found threats were not made for a Convention reason – whether breach of s.424A Migration Act 1958 (Cth) – whether Tribunal should have considered the question of relocation – whether Tribunal failed to consider adequacy of state protection – where no claim advanced that the Tribunal misunderstood the nature of the applicant’s fear when it restricted it to a fear of criminal action unconnected with the Convention. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| SZBYR v Minister for Immigration [2007] HCA 26 Minister for Immigration v Singh (2002) 186 ALR 393 Voitenko v Minister for Immigration (1999) 55 ALD 69 Saliba v Minister for Immigration (1998) 159 ALR 247 SZJRI v Minister for Immigration [2008] FCA 1090 |
| Applicant: | SZLPI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3398 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 July 2008 |
| Date of last submission: | 24 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Sarom Solicitors |
| Counsel for the Respondent: | Ms K.C. Morgan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3398 of 2007
| SZLPI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 20 April 2007. On 27 April 2007 he applied to the Department of Immigration & Citizenship for a protection (class XA) visa. On 18 May 2007 a delegate of the Minister declined to grant a protection visa. On 12 June 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal held a hearing at which the applicant appeared. On 13 September 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 9 October 2007.
The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations changed from those that appear in his application [CB7, 9, 10], which related to extortion by the authorities and the police, to a series of more detailed complaints. The applicant stated that he was a Hindu living in the state of Rajasthan and a member of the Congress Party. He ran a sweet shop. The area in which he lived and where his sweet shop was situated had a Muslim majority. He claimed that his business was interfered with by Muslims who would come into the shop and touch his sweets with hands used to eat meat. He lodged complaints with the police, but they were not attended to. He made a claim in relation to an attack upon him when he was canvassing for local elections and was a part of a group in a car to which stones were thrown. Again, he went to the police who assured him that they would take action but did not do so, although he did not know who had instigated the attack because he could not recognise them. The applicant made a claim concerning a motor vehicle incident where he was pushed off his bike [CB 82]:
“The Tribunal asked if the incident could have been an accident and the applicant stated that maybe it was an accident but at that time he was having problems with people coming to his shop and harassing him.”
The Tribunal took the view that the incidents which the applicant described and which have been rehearsed in the foregoing paragraph did not constitute ‘serious harm’ within s.91R Migration Act 1958 (Cth) (“the Act”). The gravamen of the Tribunal’s decision and the area in which it was challenged related to the claim that the applicant was in danger because he had been sitting with two politicians in a café and had got up to buy one of the politicians a packet of cigarettes, before he could return to the table the politicians were shot. The applicant witnessed the shooting. He claimed that the shooting was carried out by Muslims (he is a Hindu) who were known to be involved in political activity. The applicant closed his shop and did not reopen it. The applicant told that he was warned through his brother that he should not say anything to the police about the shooting, or else he would be killed. The Tribunal found that the threats made to the applicant were that he should not speak about the murders:
“The threats did not mention the applicant’s membership of a political party or his political opinion or his imputed opinion or that the applicant had to stop his involvement in politics. The threats were only related to the applicant being a witness to murder and the Tribunal finds accordingly. The Tribunal also finds that the threats were not made for a Convention reason. Therefore, the Tribunal finds that these circumstances do not amount to persecution for a Convention reason. Further the applicant remained in India for approximately ten months after the murders and the threats were made.” [CB 87]
…
“The Tribunal accepts that the applicant was threatened over the murders, however, for the reasons stated above the Tribunal has found that the applicant was not an intended victim of the murders and that the threats made to him were not made for a Convention reason as they related to him being a witness to murder.” [CB 88]
In regards to the threats, the Tribunal found:
“…the threats related to the applicant being a witness to murder and were not made for a Convention reason. In answer to a question about how the police could arrest the murderers if they do not know who they are, the applicant stated why should he say anything as he wants to save himself, why should he be a witness for anything, which indicated that he does not have an intention to speak to the police about the murder in the future. Further, the applicant’s evidence as to the threats and what will occur in the future, if he returns to India are vague and lacking in detail. For the above reasons the Tribunal is not satisfied that, if the applicant returns to India there is a real chance that the applicant will suffer anything more than a verbal threat as has happened in the past, in the reasonably foreseeable future.” [CB 87]
It is from these findings that the applicant, who was represented, sought by way of a Further Amended Application filed on 24 July 2008 to persuade the court that the Tribunal had fallen into jurisdictional error. The application has three grounds. The first is that the Tribunal failed to comply with its obligations under s.424A of the Act in two regards. Firstly:
“During the course of the hearing the Tribunal had an interaction with the Applicant regarding criminality and Convention based reasons. The Tribunal did not give the Applicant clear particulars as to why the information (in response to its questions) provided by the applicant would form the Tribunal’s reason or part of the reasons for affirming the decision that was under review.
Furthermore, the Tribunal provided the applicant with a breakdown of the Hindu and Muslim population but did not give the Applicant any clear particulars as to the reasons for such information and how it would be used. The Tribunal was in breach of s.424A of the Act.”
In regard to the first particular of the claim, the applicant’s counsel referred to the transcript (Exhibit 1) and in particular an exchange found at [T.17]
Q: It’s a bit hard for the police to do anything if you don’t tell
them about what’s happening.A: Why should I become witness of murder case? They will kill me.
Q: This is a criminal matter. It’s not you being persecuted for a convention
reason.A: Yeah, that is the reason of this convention. That’s politics.
Q: No, it’s not. No. Murder is a criminal matter. You have not given the police
a chance to deal with it.A: Because of the politics he was killed.
Q: So, that doesn’t matter. It’s a murder. You’ve been threatened because you’re
a witness of a murder and you’ve not gone to the police. It’s not a convention
reason.A: I didn’t go to police because I wanted to save myself and because it was
related to politics.Q: No, and you’re saying that you couldn’t identify – you didn’t tell the police
who these people were that were harassing you in your shop, so again, how
could the police do anything?A: In India, it is like that. If someone becomes witness, he or she would have
been killed by who has become witness, so why shop, so again, how could the
police do anything?Q: But this is not the politics; it’s the fact that you witnessed a crime.
A: Because they were politicians who were murdered.
Q: As I said, it’s a crime. The other matters, when you were attacked in the jeep,
you went to the police but you couldn’t identify anybody, so nothing could be
done. When you were attacked on your motorbike you couldn’t really identify
anybody so you didn’t go to the police.A: But it was night-time so I wouldn’t recognise anyone but I’m sure they were
these people.”The applicant argues that the information contained in this exchange is that the Tribunal regarded the incidents that had occurred were criminal in nature and that if the Tribunal wished to utilise this information, it should have told the applicant what the relevance and consequences of its conclusion was. It seems to me that the admission by the applicant that the information was a conclusion is fatal to his claim because it is now clear that s.424A does not require a Tribunal to inform an applicant of its thought processes and conclusions: SZBYR v Minister for Immigration [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
In regard to the second particular, I am satisfied that the information which is referred to at [CB85] is information which falls clearly within the exception found in s.424A(3)(a), being information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member.
The second ground raised by the applicant is that:
“the decision was affected by jurisdictional error in that the Tribunal failed to properly consider all aspects of relocation including reasonableness and practicality in relation to the applicant. The Tribunal failed to address the correct question; failed to give due consideration to a matter of relevance and failed to make relevant enquiries with regard to the relevant matter.”
The Tribunal made a finding that the persecution allegedly suffered by the applicant was not Convention-related. In those circumstances there was no obligation to protect imposed upon Australia by its signature to the Convention. There being no obligation, there was no necessity to consider relocation as a way of avoiding one.
The third ground raised by the applicant was that the decision was affected by jurisdictional error in that the Tribunal failed to properly consider all aspects of state protection. The particulars are expressed as follows:
“The applicant fears from the persecution; not from the government of India but from private individuals. These individuals are not agents of the state. The applicant submits that harm from such people amounts to persecution. In Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 (Khawar’s case) it was held that harm not considered to be directly Convention related may nevertheless satisfy the requirements of Article 1A(2) of the Convention.”
The applicant’s point is that there was no consideration by the Tribunal of the effectiveness of state protection even though the applicant had said that he was frightened to go to the police because he would be murdered if he did. The transcript is not altogether clear, but I am satisfied that the complaints which were made about the police found at [T.16] related to the incidents in his shop when he said that he had been harassed by Muslims.
The applicant’s attitude towards the police in relation to the murder is set out in discussions between him and the Tribunal extracted at [3] of these reasons. I do not draw from this conversation any claim by the applicant that he would not be protected if he went to the police. I do not think that I can impute from the conversations between the Tribunal and the applicant relating to the other incidents a claim amounting to a lack of state protection where, as the Tribunal says at [T.18]:
“Q: … and the format you’ve raised too, you actually went to the police but you
couldn’t identify anybody who was actually involved, one of which you said
could have been ---A: Because how can I tell to the police because I don’t recognise them?
Q: That’s what I mean. So can you say the police didn’t do anything when you
haven’t given them any information on which they could do something? One
incident, you didn’t go to the police because it was at night and you even
admitted it may have been an accident. In relation to the main event you’re
concerned about, it is a crime, and you just don’t want to be a witness.A: But it is due to politics.”
The Tribunal found that the applicant was not going to volunteer any information about the murder to the police, not because of a fear of the police or of the fact that they could not protect him, but because he was frightened of the murderers wreaking vengeance on him. I do not think, in the circumstances of this particular case, the Tribunal was required to go further and make specific findings concerning the adequacy of state protection.
Given the facts accepted by the Tribunal, one might have expected arguments and claims from the applicant that the Tribunal misunderstood the nature of the applicant’s fear when it restricted it to a fear of a criminal action unconnected with the Convention. I might have been referred to cases such as Minister for Immigration v Singh (2002) 186 ALR 393 or Voitenko v Minister for Immigration (1999) 55 ALD 69, the witness case Saliba v Minister for Immigration (1998) 159 ALR 247 and the recent decision SZJRI v Minister for Immigration [2008] FCA 1090. The applicant was represented and the case was not argued with the benefit of these authorities, so I can only assume that this was a forensic decision taken by the applicant on advice.
I am not satisfied that any of the grounds raised by the applicant constitute jurisdictional error on the part of the Tribunal. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
4
1