SZLRA v Minister for Immigration

[2008] FMCA 918

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 918

MIGRATION – Application for review of decision of RRT – persecution by criminal – no convention nexus.

Migration Act 1958, s.424A

Applicant: SZLRA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second  Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3595 of 2007

Judgment of: Raphael FM

Hearing date: 26 June 2008

Date of Last Submission: 26 June 2008

Delivered at: Sydney

Delivered on: 26 June 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms S Sirtes

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,200.00 to be paid by both applicants.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3595 of 2007

SZLRA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are a husband and wife of Indian citizenship who arrived in Australia on 22 March 2007 and applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 1 May 2007. On 6 June 2007 a delegate of the Minister refused to grant protection visas and on 26 June 2007 the applicants applied for review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicants to a hearing by way of video-conference on 30 August 2007. On the same day it wrote a letter pursuant to the provisions of s.424A Migration Act1958 (the “Act”) to the applicants.  That letter was not responded to.  On 10 October 2007 the Tribunal determined to affirm the decision under review and handed a decision down on 30 October.

2. The grounds upon which the male applicant, (his wife claiming only to be a member of his family unit) claimed to be a person to whom Australia owed protection obligations, are contained in a statement with his visa application found at [CB 34-38] and repeated in the Tribunal's discussion of the claims and evidence at [CB 111-112].

3. In short, the applicant is a Gujarati Hindu.  He appears to have a considerable amount of education and from August 1999 until 2005 taught physical education at a state school.  It was whilst in this profession that he fell victim to the attentions of a criminal known as Mr Babakham who was the uncle of one of the children in his class.  He disciplined the child and Mr Babakham took objection, beating him "with a wooden rod, which required him to be hospitalised".  The attentions of Mr Babakham did not end here.  It is claimed that this man and his henchmen started calling at the applicant's home and insulting his wife and his children.  The applicant himself was stopped on his way home many times and was attacked on occasions. 

4. The applicant told the Tribunal that this persecution commenced in 2002 and appears to have been exacerbated by the riots that took place in Gujarat during that year.  Notwithstanding this, the applicant remained at the school until 2005 when he left and started up his own shop in another town selling sari material.

5. He claimed that the shop was successful until Mr Babakham and six or seven of his men rushed into it and started to break everything.  Mr Babakham warned the applicant that if he opened his shop again he would be killed.  If the applicant opposed him he would set fire to the shop.  The applicant did not complain to the police about this because a friend had told him that Mr Babakham was too big a criminal and it might create more problems.  The best date the applicant was able to put on these attacks was 12 May 2005.

6. In September 2006 the applicant and his family left India for a holiday during which they visited Thailand, Sri Lanka, Hong Kong, Macau, China, Malaysia, Singapore and Indonesia.  After the holiday they returned to India to their original home village.  The applicants did not leave India again until they travelled to Australia in 2007.

7. The Tribunal questioned the applicant about his claims including the applicant's evidence concerning his political affiliation with the BJP Party.  The applicant explained that he was interested in the BJP and that due to his problems with Mr Babakham he felt that they might give him protection.  The applicant did not admit to being a formal member of the BJP and did not appear to know too much about its party political program in response to questions from the Tribunal.

8. The Tribunal indicated to the applicant that he was sceptical about his claims of being persecuted by Muslims in India noting that 80.5% of the Indian population was Hindu and only 13.4% was Muslim.  He suggested that the applicant might be able to relocate to another part of India but the applicant stated that he would be found by Mr Babakham and his criminal elements.

9. In its findings and reasons, which commence at [CB 118], the Tribunal accepted that the applicant may have suffered some damage during the 2002 riots and developed an enmity with Mr Babakham, a local criminal, but expressed the view that the applicant's connection with that gentleman did not indicate a convention nexus, it appearing to have arisen out of an incident at the school rather than because of any convention reason.

10. The Tribunal noted that the applicant had travelled to a number of countries in 2006.

    “However, the Tribunal accepts that the applicants both travelled to a number of countries [listed] in September 2006 in which they could have either enquired about, or more importantly sought refugee status, but the Tribunal accepts that they did not do so. Nor did the applicant claim to have approached a foreign diplomatic mission or the United Nations in order to seek asylum or use the opportunity of being outside India to go to a country where he could apply for refugee status if he did not feel safe for a Convention related reason in any of the countries he visited...Moreover, the Tribunal accepts his claim made at hearing that he chose not only to return to India, but also to his home village after having been to these countries.”

11. In its letter of 30 August 2007 the Tribunal again raised these and other matters with the applicant and put to him that, subject to any comments he may have:

    “Independent Country Information may indicate that it was the Muslims in Gujarat that have been subjected to official discrimination and harassment not Hindus, and as a result of this it is the Muslims (not Hindus) that may have a claim to experiencing persecution due to this incident, not the other way round, and accordingly you do not have a well founded fear of serious harm from the Muslim community because you are a Hindu in Gujarat.”

12. The Tribunal came to the view, in the absence of the applicant's response, that if he really did have a well founded fear of persecution, he would not have remained in Gujarat for three years after the 2002 riots and would have moved to another state. It was the applicant's failure to satisfy the Tribunal that he did have a well founded fear of persecution that was the reason for the Tribunal declining to grant the visa.

13. The Tribunal did consider the applicant's political claims but came to the view that as he was not a member of the BJP and did not take part in any of its activities, it could not accept that he was likely to suffer any persecution as a result of his political affiliations or imputed political affiliations should he return.  It noted that he had already indicated a willingness to return to India in 2006.

14. Finally, the Tribunal considered the applicant's claim that he would be unable to relocate because he would be found by Mr Babakham if he went elsewhere, in respect of which the Tribunal opined:

    “And while the Tribunal accepts that Babakham is a criminal with whom the applicant had some personal enmity, the Tribunal does not accept his unsupported claim that Babakham would be able to track him down wherever he went in Gujarat, let alone elsewhere in India, which is a country of over a billion people.  For example, he provides no evidence that Babakham has access to police or other government records or computers, or would be able to track him down wherever he went in India, even if he wished to do so.  Indeed, the Tribunal accepts the Independent Country Information put to the applicant in its letter of 30 August 2007 from the UK Home Office that states in part that "Local police forces have neither the resources nor the language abilities to perform background checks on people arriving from other parts of India.  There is no system of registration of citizens, and often people have no identity cards, which in any event can be easily forged.”

15. The Tribunal found that it was satisfied that it would be reasonable for the applicant to return and live elsewhere in India in safety and without being at risk of serious harm if for any reason he did not wish to return to his home town or there being any real chance that he would be subject to serious harm from the Muslim community, political opponents or indeed from Babakham for a convention related reason (these being claims the Tribunal did not accept).

16. The applicant filed an Amended Application on 1 February 2008 that contains three grounds upon which the applicant indicates that he believes the Tribunal fell into jurisdictional error.  The first point relates to the finding by the Tribunal that:

    “The applicant travelled to a number of countries in September 2006 in which they could have either enquired about or, more importantly, sought refugee status.”

17. The applicant points out that none of the countries to which the applicant travelled were signatories to the convention and thus he was unable to seek asylum there. The applicant claims that this is taking into account an irrelevant consideration, and to some extent he may well be right. But the Tribunal does not rely solely on his failure to seek asylum in these non convention countries, it relies additionally on the fact that he did not approach any foreign diplomatic mission or the United Nations in order to seek asylum whilst he was in those places and, even more importantly, that having gone there, he returned to India and remained in India for approximately a year before he left again.

18. It seems to me that when you look at the Tribunal's reasons as a whole, this is not so much the taking into account of irrelevant material but more a mistake of fact on the part of the Tribunal which would in itself not constitute a jurisdictional error. More importantly, the Tribunal raised this matter with the applicant in the s.424A letter, so that the applicant had an opportunity to put the Tribunal right about its mistake concerning the countries he visited, but he failed to do so.

19. The applicant also complained that the Tribunal had made some comments that the countries he had travelled to were Muslim countries and that he had not taken the opportunity whilst he was away to go to another non Muslim country and claim asylum.  The applicant argues that this is also an irrelevant consideration. 

20. Actually what happened was that the Tribunal appears to have pointed out to the applicant that some of the countries he went to were Muslim countries and that he had expressed a fear of Muslims so that travelling to Muslim countries appeared to be inconsistent with the fears that he had expressed.  The Tribunal also pointed out that some of the countries which he visited:  Sri Lanka, Thailand and Hong Kong did not have Muslim majorities but the applicant had said that he did not feel safe there.  I do not think that these comments by the Tribunal indicate the taking into account of irrelevant material, rather it was part of the Tribunal's questioning of the applicant upon the claims that he himself had put forward.

21. The second matter raised by the applicant was that the Tribunal erred in law when it said that:

    “Independent Country Information may indicate that it was the Muslims in Gujarat that have been subjected to official discrimination and harassment, not Hindus.”

    The applicant argues that this is a view of the Tribunal which is not supported by probative material and then says that if it did have such material he should have been sent a notice under s.424A Migration Act.

22. The Independent Country Information to which the Tribunal referred is set out on the first page of the s.424A letter [CB 101]. It is clearly indicated that this is what the Tribunal is referring to by the use of the word 'this' in the bolded explanation found at [CB 102].  I am unable to assist the applicant in relation to this ground of application.

23. The final ground indicates that the Tribunal failed to address the third party element of persecution and state protection in relation to the persecution caused by the third party.  This claim is particularised as follows:

    “The criminal element in India is so rampant that there is nowhere that people can hide as this element works in a strong underground network.  The Tribunal erred in law by failing to take into account relevant consideration, as it is known everywhere that individual protection does not exist and general protection as an ordinary citizen does not help me because I am a target of a criminal element which is out of control and which has the capacity to bribe police and authority in India.  As the corruption is out of control and failing to consider this while making the decision  the Tribunal has failed in its obligations to deliver fairness.”

24. Two things arise from this; firstly, it is quite clear that the Tribunal did not err when it came to a finding that the applicant's complaints did not have a convention nexus because it is not being suggested that the reason for the failure of state protection had anything to do with the applicant's race, religion, nationality, membership of a particular social group or political opinion.  It is clear from these particulars that the applicant is in fact asking the court to come to a different decision on the merits of his case and that of course the court is unable to do.

25. Before me today the applicant said that everything that he had spoken about had happened and he was suffering harm from Mr Babakham and that was why he left India.  The Tribunal has not denied that the applicant may have suffered harm from Mr Babakham but it concluded that any fear he may have felt could not fall within the definition of a well founded fear of persecution for a Convention reason.  I am unable to see that the Tribunal fell into jurisdictional error in the manner in which it came to that conclusion.  I dismiss the application.  I order that the Applicant pay the First Respondent’s costs assessed in the sum of $4,200.00 to be paid by both Applicants.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: