SZLVR v Minister for Immigration - [2008] FMCA 421

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLVR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 421

MIGRATION – RRT decision – Indian applicant fearing persecution by money lenders – no arguable case for judicial review – application dismissed at show-cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth)

First Applicant:

SZLVR

Second Applicant:

SZLVS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2 of 2008

Judgment of:

Smith FM

Hearing date:

26 March 2008

Delivered at:

Sydney

Delivered on:

26 March 2008

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the First Respondent:

Ms B Griffin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

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.
The applicants must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2 of 2008

SZLVR

First Applicant

SZLVS

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 June 2007. On 12 July 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 his visa application, the applicant said that he had been in business in Ahmedabad. Through family contacts, he had good relations with BJP workers, and he “joined actively in works of RSS and BJP”. These connections helped him get loans for his business. Although he was Hindu, he had no problems in his business with the majority Muslim people around his shop, prior to an earthquake in 2001. His business was affected a lot by that earthquake, and he lost “my majority customers”.
His business again suffered in 2002 after riots between “Hindu and Muslim”. His shop was closed for two and a half months, and his creditors pressed him for repayment. He obtained further loans from an investment company, which he later found was owned by Muslim merchants. He was unable to pay interest on this loan, and “I couldn't concentrate on my work and duties to RSS and BJP, they also neglected me and my request for help”. He received warnings from his creditors, and was assaulted by them on two occasions. He travelled to Malaysia, and then later came to Australia, where he wished to work so that he could repay his debts.
A delegate refused the application on 13 August 2007, and the applicant appealed. He attended a hearing held by the Tribunal on 23 October 2007, where he explained his history to the Tribunal. He told the Tribunal that the Muslim money lenders had hit him in 2002. He said that before he had left India in 2006, a bank had auctioned the business and his home. He had returned to farming, but that provided insufficient money.
The Tribunal said in its statement of reasons that it discussed with the applicant the situation in Gujarat following the communal riots, “noting that Hindus make up the vast majority of the population of Gujarat and that the BJP is the governing party”. The Tribunal also put to the applicant its concerns about his claims, including that the harms directed at him did not appear to fall within the Refugees Convention.
In a decision handed down on 6 December 2007, the Tribunal affirmed the delegate's decision. It gave several reasons for not being satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal concluded that the harm directed at the applicant was not directed at him for any Convention reason, “but is purely commercial – the applicant borrowed too much money, his business failed and he was unable to repay the loans”. The Tribunal noted that one of the persons to whom he owed money was a Muslim, and that his business had suffered because of its location in a predominantly Muslim area. However, it said that it was satisfied “that the applicant's religion is not the essential and significant reason for either the failure of his business or the harassment by the creditor”.
The Tribunal noted that the applicant's business had suffered by reason of the earthquake and the riots in 2002, but found that these events were not directed at the applicant for any Convention reason “either personally, or as a member of a group”. Therefore, assuming that the applicant had been beaten or hit on two occasions and subjected to threats, it found that the harm was not directed at the applicant for a Convention reason, including his religion or his political opinion.
The Tribunal also provided other reasons for its conclusion that the applicant was not a refugee. One was that it did not consider that the harassment of the applicant was of “sufficient severity to be considered persecution, even if it had been inflicted upon him for a Convention reason”. It also considered that the applicant could have obtained protection from the state authorities “given that Hindus make up the vast majority of the population of Gujarat, and the BJP is the party of government”, if he had experienced harassment for reason of political opinion or any other reason.
The Tribunal also gave a fourth reason for affirming the delegate's decision, which was that it formed the view that the applicant did not hold a “subjective fear of serious harm”.
I have considered the Tribunal's reasoning, and, in my opinion, its conclusions reveal no arguable jurisdictional error, in particular, in relation to its finding that the harms encountered and feared by the applicant were not for a Convention reason.
The applicants now ask the Court to set aside the Tribunal's decision, and to order it to reconsider the matter. 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 additional documents, after receiving a bundle of relevant documents and advice from a free legal adviser appointed by the Court.
The applicant today presented an amended application and a written submission. Unfortunately, most of the submissions in these documents are taken from other cases, or do not appear to have a relationship to the present Tribunal's decision. Nor has the applicant husband or wife been able to present relevant submissions to the Court orally.
The grounds of the original application make unparticularised allegations of a breach of s.424A(1), denial of procedural fairness, and that the Tribunal was “wrong in concluding that the applicant's claims were not Convention-related”. However, I am unable to discern any arguable substance to any of these contentions.
The amended application in ground 1 claims that the Tribunal made errors in relation to the application of s.91R(1)(b) and (c) of the Migration Act. The argument is unexplained and, in my opinion, has no arguable substance. Moreover, even if the Tribunal's assessment of the seriousness of the harm suffered by the applicant in India by reference to those provisions revealed any error of law, such an error would have been immaterial to the outcome of the case, and relief would be denied for that reason. This is because the Tribunal provided clearly independent and alternative grounds for affirming the delegate's decision.
Grounds 1 and 2 of the amended application also contain unparticularised contentions of breach of s.424A(1). However, I cannot identify any information coming within that section which could arguably have been required to be put to the applicants in writing.
Ground 3 of the amended application is confused. To the extent that it suggests that there was a claim or part of a claim which was not addressed by the Tribunal, I can see no arguable basis for that. The ground's suggestion that error was made in relation to reasoning of the Tribunal concerning relocation has no relationship to the actual reasoning of this Tribunal.
The applicant's outline of submissions draws attention to the fact that a hearing under r.44.12 of the Federal Magistrates Court Rules is interlocutory. I am conscious of this, and that the Court should be confident that no arguable case is raised, before exercising the power to dismiss the application under r.44.12(1)(a). However, in the present case I have arrived at a firm conclusion that the application does not raise an arguable case for the relief claimed, and that it is appropriate to dismiss the application today.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 2 April 2008