SZOID v Minister for Immigration
[2010] FMCA 517
•19 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOID v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 517 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – Tribunal found no Convention nexus with the harm asserted by the applicant – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190 |
| Applicant: | SZOID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 777 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 19 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2010 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 777 of 2010
| SZOID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 March 2010. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s arrival in Australia, his protection visa claims, and the decision of the Tribunal on them are conveniently summarised in the Minister’s outline of submissions filed on 14 July.
The applicant, who is a citizen of India, arrived in Australia on 19 August 2009 (court book (“CB”) 64).
He applied for a protection visa on 30 September 2009 (CB 1-27). In setting out his reasons for claiming to be a refugee, the applicant wrote that he left “[f]or Social and Political problem” but otherwise indicated that he “will discuss in my interview”. No other details were, at that stage, provided.
Subsequently, on 22 October 2009, the applicant submitted a second application for a protection visa (CB 29-53). The applicant wrote that he left India because:
I had big problem in my country. I ran away from India. I am afraid. I need shelter. Please help me. Please save me. I will tell you everything in my interview (CB 46).
The applicant attended an interview with the Minister’s delegate on 10 December 2009 (CB 58-59; see also the delegate’s decision at CB 70-81 and the Tribunal’s account at CB 104 [28]).
It emerged during the course of the interview that the applicant claimed to fear persecution because he was a member of the Mali caste whereas other members of his community belong to the Meghwal caste. He claimed that members of the Meghwal caste quarrelled, fought and harassed the applicant and his family (see, in particular, CB 75.9-10).
On 17 December 2009, the delegate refused to grant the applicant a protection visa (CB 70-81).
On 12 January 2010, the applicant applied to the Tribunal for review of the delegate’s decision (CB 82-85).
On 18 March 2010, the applicant attended a hearing before the Tribunal (CB 90-91; CB 105 [29]-[43]). Before the Tribunal, the applicant claimed to fear harm from neighbours who are members of another caste and who wish to acquire his land cheaply (see CB 106 [34] and 108 [46]).
On 19 March 2010, the Tribunal affirmed the decision not to grant the applicant a protection visa (CB 100-111).
Tribunal’s findings and reasons
The Tribunal characterised the applicant’s claims concerning his experiences in India as “brief and unsubstantiated from any external source” (CB 108 [48]).
The Tribunal summarised the applicant’s claims as follows (CB 108 [48]):
[The Applicant’s claims] amount to no more than the simple assertions that his family belongs to the Mali caste and that he was threatened, harassed and on some occasions beaten by his neighbours who were all members of the Meghwal caste. At the hearing he claimed they did this to pressure him into selling them his house and land at a low price. He claims this harm was so severe that he was forced to leave his home regularly in order to find shelter with friends in other villages or in his place of employment in Delhi. He claims to have complained to the police on one occasion but to have received no help.
The Tribunal expressed some reservations about the applicant’s credibility. The Tribunal noted that the applicant did not speak about his claimed “long history of harm” with the level of detail that would be expected of someone for whom such a history could reasonably be expected to form a “significant and memorable part of his life”. The Tribunal said there was little in the applicant’s responses at the hearing “to suggest that he was speaking with any first-hand knowledge of the incidents he claims” (CB 108 [49]).
While the Tribunal expressed further reservations about the applicant’s credibility arising from inconsistencies between the applicant’s claims at the delegate’s interview and those at the hearing, the Tribunal accepted that the applicant demonstrated some difficulty with his ability to recall events which may have affected his responses and contributed to the inconsistencies (CB 108 [49] at CB 109.1-2).
The Tribunal accepted that:
a)the applicant was subjected to some degree of harassment by neighbours, extending over a number of years;
b)the applicant may have felt the need to absent himself from his home at various times in order to avoid the “unwelcome attentions”, although these absences may also have been caused by work commitments; and
c)the treatment of the applicant by his neighbours could be said to constitute serious harm amounting to persecution (CB 108 [49] at CB 109.3-4).
As to why the applicant suffered the harm, the Tribunal found that the applicant’s evidence clearly indicated that his neighbours were motivated by a desire to obtain his property and that they were prepared to engage in criminal activity to achieve their aim (CB 109 [51]).
The Tribunal did not accept that the harm was in any way based on caste differences. If caste differences had been a motivating cause, then, according to the Tribunal, “there appears no logical reason why they would have begun this targeting only in 2003 or why members of his family are not also being targeted for harm” (CB 109 [51]).
The Tribunal accepted that the Mali caste can aptly be described as a particular social group, but was not satisfied that the applicant has ever suffered persecution in the past for reason of his membership of that group (CB 109 [51]).
The Tribunal found, on the basis of independent country information, that the police in India do provide protection for citizens against criminal acts, even if that service is imperfect in some ways. The Tribunal was not satisfied that state protection against the menaces of his neighbours was ever denied to the applicant in the past or that it would be denied to him in the future (CB 109 [52]).
The Tribunal noted that the applicant could be at risk of harassment from his neighbours, amounting to persecutory harm, if he were to return to India. However, the Tribunal was not satisfied that there would be any relevant Convention nexus, instead noting that it would amount to “no more than simple criminal conduct designed to deprive the Applicant of his property”. The Tribunal was also not satisfied that the applicant would be denied state protection, if requested (CB 109 [53] at CB 110.1-3).
The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to India now or in the reasonably foreseeable future (CB 110 [54]).
The Tribunal accordingly affirmed the decision not to grant the applicant a protection visa (CB 110 [55]-[56]).
The applicant relies upon his show cause application filed on 9 April 2010. There are three grounds in that application:
1. The [Tribunal] incorrectly applied the definition of a Refugee under the Convention.
2. The [Tribunal] breached s.424A of the Migration Act 1958.
3. [Tribunal] [d]enied natural justice and breached procedural fairness. (I will amend application in more details later)
None of the grounds are particularised. I gave directions in this matter on 3 May 2010. I gave the applicant the opportunity to amend or augment his application and file additional evidence. He has not taken up that opportunity. I receive as a submission his affidavit filed on 9 April 2010 which repeats in general terms the grounds in the application.
I received as evidence the court book filed on 6 May 2010.
I gave the applicant the opportunity to make oral submissions at today’s hearing. He did not wish to make any submissions.
In my view, there is no jurisdictional error in the Tribunal decision. I agree with counsel for the Minister that the Tribunal’s critical reasoning is contained at [51]-[52] of its decision (CB 109):
These aspects of the Applicant’s evidence indicate clearly that his neighbours were motivated by a desire to obtain his property and that they were prepared to indulge in criminal activity to achieve their aim. I am not satisfied that the consequent harm suffered by the Applicant can have been based in any way in caste differences, even if I accept that the Applicant is a member of the Mali caste and all his neighbours are members of the Meghwal caste. If caste differences had, in fact, been a reason for the neighbours to target the Applicant then there appears no logical reason why they would have begun this targeting only in 2003 or why members of his family are not also being targeted for harm. I accept that the Mali caste can aptly be regarded as a particular social group for the purposes of the Convention and that the Applicant can be said to be a member of this entity. However I am not satisfied there is anything in the information before the Tribunal to indicate that he has ever suffered persecution in the past for reason of his membership of this particular social group.
The Applicant claims to have complained to the police on one occasion, some three years ago, about the harm he was suffering from his neighbours. He claims he did not do so again because the police did not help him and because it is necessary in India to pay bribes to the police before they will act. Having considered his evidence I am not satisfied that he would have been unable to pay such bribes had they ever been demanded, given his evident ability to find the money to travel to Australia. More importantly, as put to him at the hearing the independent country information indicates that the police in India do provide protection for citizens against criminal acts, even if that service is imperfect in some ways. Having regard to this information I am not satisfied that state protection against the menaces of his neighbours was ever denied to the Applicant in the past or that it would be denied him in future.
The Tribunal’s reasoning that there was no Convention nexus with the harm said to have been suffered by the applicant was a reasoned analysis. The Tribunal considered whether there was any link between the applicant’s caste and the harm he said he and his family had suffered from those who desired to acquire his land. The Tribunal found no link. There may be circumstances where a decision maker overlooks a possibility that ordinary criminal activity has a Convention nexus because an applicant is a member of a particularly vulnerable group which puts him or her at greater risk of harm because of criminal activity. This is not such a case.
Further, the Tribunal found that effective state protection was available in India against the harm the applicant claimed to have been exposed to, while recognising that there could be no guarantee of protection, and the level of protection from the police in India is imperfect. The Tribunal discussed with the applicant the issue of payment of bribes in order to obtain police action. In my view, it would be difficult to say that state protection is effective if it is dependent upon the payment of a bribe. However, the Tribunal did not fall into the trap of considering the protection available was effective because of the existence of bribery. The Tribunal reasoned that the level of protection from the police in India, while imperfect, was effective, in any event.
In my view, the Tribunal’s reasoning does not point to any jurisdictional error.
I agree with the Minister’s submissions that there was no breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
The obligation under s.424A of the Migration Act was not enlivened because there was no relevant “information”, as that word is understood in s.42A(1), as explained by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615 [17]-[18]; 81 ALJR 1190 at 1196 [17]-[18].
To the extent that procedural fairness remains an issue in considering jurisdictional error, I am satisfied that there was no want of fairness in this case. I agree with the Minister’s submissions.
The Tribunal’s obligations to accord procedural fairness are exhaustively set out in Div 4 of Pt 7 of the Migration Act: see s.422B(1). There is nothing to suggest that the Tribunal did not act in accordance with its statutory obligations. The Applicant was invited to attend a hearing, and did so attend. The determinative issues were raised by the Tribunal with the Applicant at the hearing and he was given an opportunity to respond to the Tribunal’s concerns.
There being no jurisdictional error in the Tribunal decision, the decision is a privative clause decision, and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks costs in accordance with the Court scale. The applicant asserted impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5865, in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 July 2010
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