SZMEY v Minister for Immigration

[2008] FMCA 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMEY v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1175

MIGRATION – Review of decision of RRT – where Tribunal accepts applicant’s claims but finds that the alleged persecution was not convention related – where Tribunal considers relocation.

Migration Act 1958, ss.422B, 424AA

Applicant: SZMEY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1079 of 2008

Judgment of: Raphael FM

Hearing date: 13 August 2008

Date of Last Submission: 13 August 2008

Delivered at: Sydney

Delivered on: 13 August 2008

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $3,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1079 of 2008

SZMEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 1 April 2007. On 12 April 2007 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 22 June 2007 a delegate of the Minister refused to grant a protection visa. On 9 July 2007 the applicant applied for a review of the delegate's decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended on 16 October 2007. At the end of that hearing the Tribunal provided him with certain information pursuant to s.424AA of the Migration Act1958 and offered the applicant an opportunity to consider this information and to request an adjournment. This is what the applicant did and a further hearing was held on 11 February 2008. On 25 March 2008 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was handed down on 15 April 2008.

2. The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was that he was a member of the lower Nai caste and a hereditary barber. He claimed that on two occasions he was attacked in his shop by persons of a different caste who were also members of the BJP party. On the first occasion these people had their hair cut and refused to pay. The applicant remonstrated and the attackers used bad words and abused and pushed him. They told him that if he demanded money from them they would attack him again. About 10 days later some of these people returned with others. They:

   “Attacked me physically; threatened me that they wouldn't allow me to run my business.  They said they were will approach other people of my caste to open a business near my shop.  The first time they came, I provided the service, the second time I refused.  After this incident I was thinking to leave that place.  I was thinking to move and start work somewhere else.  Then I decided to join the Congress Party so I would get the support of the party.”  [CB 113]

   The applicant argued that the persecution he claimed to have suffered was also due to the fact that he was a member of the Congress Party. He told the Tribunal that he had joined that party because it was recognised as protective of persons of lower castes. The applicant left behind him in India a wife and child. He told the Tribunal they were living in Ahmedabad and that he had considered moving to that town but was persuaded by his friends that he could relocate into Australia and so utilised a passport he had obtained some time before to travel here.

3. The Tribunal questioned the applicant about his claims and accepted that the attacks he had described occurred and that they involved systematic and discriminatory conduct. But it was not satisfied that the attacks occurred because of the applicant's membership of the Nai caste or because of his race or because of his political opinion as a supporter of the Congress Party:

   “The attackers told the applicant that they would assist the other people from the applicant's caste to set up a shop near to the applicant's shop, thereby putting the applicant out of business. I am not satisfied that if the attacks had indeed been motivated by the applicant's caste, the attackers would offer to assist other members of the applicant's caste to set up business in competition to him. Such an offer bespeaks a more personal grudge rather than one directed against members of the barber caste generally. I am not satisfied that the persecution of the applicant during the two attacks was for the reason of his membership of a particular social group, namely as a member of the Nai caste.

   No evidence has been put forward to show the attacks on the applicant were racially motivated.  I am not satisfied that the applicant was persecuted on the basis of his race.

   Despite the applicant's claims in his protection visa application that he continued to experience attacks, abuse and harassment on the basis of his political connections and his statement that he had been targeted because he insulted people from the BJP party, there is no evidence before me to satisfy me that these attacks were politically motivated.

   ...

   Given that the applicant did not join the Congress Party until after the attacks and did not provide any evidence to show that he had an affiliation with any political party prior to the attacks, I am not satisfied that the applicant was attacked for reason of his political opinion or that he would be targeted upon his return for this reason.” [CB 119]

   The Tribunal was not satisfied that the reaction of the police to the applicant's claims was motivated by a Convention‑related antipathy towards him but preferred the view that any failure to act was because they saw the matter as a civil dispute. The Tribunal then turned its mind to the question of relocation and concluded that as the applicant had himself stated that he was interested in relocating, and as his wife and child were in Ahmedabad and as he had language skills and a portable profession, it would not be unreasonable for him to relocate to that city and if he did do so he would not suffer from persecution from members of the BJP because his association with the Congress Party was not such as to jeopardise his safety in such a large city. The Tribunal noted from independent country information that India protected people from caste‑based persecution which was prohibited by Article 15 of its constitution.

4. The applicant provided a number of grounds upon which he claimed that the Tribunal had fallen into jurisdictional error in the manner it came to the conclusions that have been set out above. He firstly said that the Tribunal's decision was in breach of s.424A(1) of the Migration Act1958 and in his particulars referred to information that had been given by him to the delegate for the purposes of deciding his protection visa application. He describes this information as adverse information but he does not particularise what that adverse information is. As Ms Buchanan, who appears for the Minister points out, one is hard put to find any such adverse information. In any event the decision in this case is one which was made after the insertion into the Act of s.424A(3)(ba) and so this ground of complaint is not available.

5. The second particular given by the applicant is that the Tribunal did not take into account any evidence or materials before it nor did it give him enough time to get supporting evidence to comment on adverse information. Once again, particularisation is sadly lacking but the fact is that the Tribunal did give the applicant opportunity to comment upon adverse information when it exercised its powers under s.424AA and granted the applicant quite a lengthy adjournment before a second hearing. During that adjournment the applicant provided the Tribunal with some further information which consisted of two death certificates and a letter from a local Congress Party dignitary. The two death certificates of his parents were considered by the Tribunal to be irrelevant to his claims and the Tribunal accepted the evidence of the applicant's membership of the Congress Party. To my mind there has been no breach of s.424A in these circumstances.

6. The second ground upon which the applicant alleges the Tribunal made an error is that it failed to provide him with procedural fairness. The first particular relates to the finding that he could relocate and he argues that there was no probative evidence upon which the Tribunal could have made this finding. The second particular is that the Tribunal should have provided him with an opportunity to raise any impediment to relocation. The question of relocation was raised first in the decision of the delegate:

   “I also find that the applicant can relocate to areas where such caste related incidents of harm are less frequent such as urban areas where he could avoid the caste conservatism of rural areas and avail himself of affirmative action programs, and, if necessary, governmental protection.  I also find that the applicant could personally and reasonably relocate.  The applicant is a member of a country whose population is over 1 billion people.  The applicant processes approximately 10 years education and claims to have been a former business owner.  Given the geography and population mass of people, coupled with the skills of the applicant, I consider that relocation is a reasonable option for the applicant and I find that he has the personal attributes and capabilities of doing so.”  [CB 63]

   Thus, the question of relocation could not have come as any surprise to the applicant and he has not established to my satisfaction that the matter was not raised at the Tribunal's first hearing so that he had some months before the second hearing in which to consider the matter and to provide any additional evidence that would indicate that he was not capable of relocation to the city in which his wife and child now lived and to which he had already stated he was proposing to relocate before he learned of the attractions of Australia. These proceedings were ones to which the provisions of s.422B of the Act apply and in all the circumstances I am unable to be satisfied that a breach of the code identified by that subsection has occurred.

7. The applicant then argues that the Tribunal made a positive finding of fact on a critical matter without any probative evidence. To the extent that he might be talking about the relocation there was evidence upon which the Tribunal could come to the conclusion which it did. It was evidence given by the applicant himself. To the extent that the applicant might be referring to some other evidence about some other fact, he has not particularised it and this court is not able to guess what the true complaint might be. Before me today the applicant said that he could not add anything to the grounds contained in his application so I have not been assisted to solve this conundrum.

8. Finally, the applicant argues that the Tribunal should have given consideration as to whether the applicant's evidence might support the application on a basis not articulated by the applicant, being that the people who attacked him were from the BJP. In actual fact the claim that the thugs who attacked him were from the BJP was raised by the applicant and was considered by the Tribunal and was not disbelieved. The essence of the Tribunal's finding was that even members of political parties act in ways which some might consider to be persecutory without necessarily having political motives. The Tribunal could be satisfied that the applicant's association with the Congress Party was so known to these thugs that they attacked him because of that and this is a finding on the evidence which I could only disturb by providing my own form of merits review. This is not permitted. The Tribunal noted that the applicant only joined the Congress Party after the events complained of had taken place.

9. In the circumstances I am unable to assist the applicant by finding that the Tribunal fell into jurisdictional error in the manner in which it reached this decision. I dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $3,300.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: