SZLRR v Minister for Immigration

[2008] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 328

MIGRATION – RRT decision – Indian claiming political harassment in local politics – Tribunal found it was practicable to relocate to avoid persecution – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth)

SZATV v Minister for Immigration & Citizenship [2007] HCA 40, (2007) 237 ALR 634

First Applicant: SZLRR

Second Applicant: SZLRS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3662 of 2007

Judgment of: Smith FM

Hearing date: 26 February 2008

Delivered at: Sydney

Delivered on: 26 February 2008

REPRESENTATION

Counsel for the Applicants: Applicant in person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicants must pay the first respondent’s costs in the sum of $2,100. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3662 of 2007

SZLRR

First Applicant

SZLRS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants came to Australia in March 2007, and on 12 May 2007 applications for protection visas were submitted to the Department of Immigration on their behalf by an agent, Mr Raymond F Solaiman.  They are a husband and wife, but only the husband made claims to fear persecution if he returned to India.  The application said only: 

   I was persecuted by the thugs for being a businessman and the government did not provide me protection because I protested against their corruptions. 

2. No details or support for this claim were later given to the Department, and a delegate refused the application on 25 June 2007. 

3. On appeal, the applicant husband attended a hearing of the Tribunal on 28 September 2007.  He was subsequently sent the tapes, but has not presented a transcript.  According to the Tribunal’s description of the hearing, he told it that he had a money lending business in his village in Gujarat State.  He claimed to have stood as an independent for municipal elections in either 2001 or 2002, and as a result people had made demands for money on him and had harassed him.  When he complained to the police, they asked for a bribe, and “the bad people who had asked him for money beat him”.  He believed that they had been sent by the BJP and the Congress parties in retaliation for his standing at the local election. 

4. In its decision handed down on 8 November 2007, the Tribunal affirmed the delegate’s decision.  It accepted that the applicant had tried to stand as an independent for the Municipal Corporation in his village, and that this may have motivated the local Congress Party and BJP to intimidate him.  It was also prepared to accept that the local police may not have assisted him, and also may have asked for a bribe.  However, it formed the opinion that his activities were “highly localised and confined” to his village, and that his “activities and profile were significant only within [that village] and that the local Congress Party and BJP were motivated purely by local reasons when they threatened to harm him and harmed him”. 

5. The Tribunal said that he had provided no acceptable reasons as why it was unreasonable for him to relocate within India.  It did not accept that his past harm, experienced at the local level as a result of the various localised political issues in his village, was evidence that persecution would occur in the reasonably foreseeable future if he relocated elsewhere in India, even if he engaged in the localised politics of those other areas.  It concluded: 

   The Tribunal finds the applicant has been in the finance business and speaks Hindi and Gujarati.  The Tribunal is satisfied that it is not unreasonable in the sense that it is not impracticable for him to relocate to a different part of India where he would not be at risk of persecution now or in the reasonably foreseeable future. 

   Overall, based on the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of being persecuted throughout India for the reason of his political opinion or any other Convention reason.  He is not a refugee. 

6. The applicants now ask the Court to set aside the Tribunal’s decision and to order it to reconsider their refugee claims.  The application has been set down today to consider whether it raises an arguable case for the making of these orders.  The applicants have been given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice.  They have not filed any further documents but rely on the original application. 

7. It contains three grounds: 

   1.The RRT denied proper application of law to the applicant. 

   2.The RRT denied natural justice to the applicant. 

   3.The RRT did not follow due procedure. 

8. The contention that the Tribunal “denied proper application of law” is not particularised.  The Tribunal’s reasons for finding that the applicants could relocate geographically in India to avoid persecution are brief, but I am unable to identify any arguable error.  The Tribunal appears to apply principles approved in the High Court recently in SZATV v Minister for Immigration & Citizenship [2007] HCA 40, (2007) 237 ALR 634. It has taken into account the practicability of relocation. I can see no arguable error arising under Ground 1.

9. Grounds 2 and 3 lack any particulars in relation to procedural unfairness or other procedural error, and I am unable to identify any arguable failure by the Tribunal to follow procedures required under the Migration Act 1958 (Cth). The applicant husband was given a full opportunity to present his claims to the Tribunal at a hearing, and according to the Tribunal’s description he was alerted to the issue of relocation by the Tribunal. He was given the opportunity required by law to present all his evidence to the Tribunal.

10. The applicant husband attended the hearing today.  His submissions were that politicians could reach anywhere in India, and that he needed more time to present evidence from India to prove his claim.  However, these submissions addressed the merits of the Tribunal’s decision and did not identify jurisdictional error.  In the absence of any arguable jurisdictional error, I would have no power to order further consideration of his claims. 

11. In my opinion, the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 March 2008