SZOKJ v Minister for Immigration

[2010] FMCA 727

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKJ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 727

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider all the integers of his claim – matter turns on its own facts.

Migration Act 1958, s.474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZOKJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1058 of 2010

Judgment of: Cameron FM

Hearing date: 14 September 2010

Date of Last Submission: 14 September 2010

Delivered at: Sydney

Delivered on: 14 September 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1058 of 2010

SZOKJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India and claims to be Muslim. He alleges that, while in India, he married a Hindu girl in “the traditional Muslim way”. He claims that her family did not initially object but later changed their minds and reported him to the police, accusing him of kidnapping and having forced her to convert to Islam. He claims that her family threatened him and that the police will not protect him because he is Muslim.

2. The applicant claims to fear persecution in India because he married a Hindu girl. He also claims to fear persecution in India because of his religion and political opinion.

3. After his arrival in Australia on 19 August 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 17 December 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 and 7-11 of the Tribunal’s decision.

Protection visa application

1. The applicant made the following claims in his protection visa application:

   a)he is a Muslim;

   b)he married a local Hindu girl in the traditional Muslim way. Afterwards, she changed her name;

   c)initially, her family did not make a big issue of it. However, after a couple of months they changed their minds and, with the help of the BJP and the RSS, reported the matter to the local police. They told the police that the applicant had kidnapped and forced her to convert to Islam;

   d)the police made enquiries at his home and spoke to his father. When the applicant heard about this, he became scared because he knew what they would do to him. Many of his friends who had been in similar situations ended up in gaol, the police having tortured them into signing confessions;

   e)being in the poor minority, he cannot expect protection from any law enforcement authority. The Indian police are very inhuman, especially against Muslims, and even if he got out the Hindu extremists would target him; and

   f)he was a very low level party worker in the Congress Party.

Tribunal hearing

1. At a hearing before the Tribunal, the applicant made the following additional claims:

   a)when he was 18 years old he worked for the Congress Party, printing posters and putting up party flags. He did this for one and a half to two years and stopped working for them when he was 19 or 20 years old;

   b)his wife, who was about 17 or 18 years old when they married, changed her first name. She did not have a surname;

   c)he could not remember the date they were married, although it was about 6-12 months ago. No one attended the wedding;

   d)about one to two months after the marriage his wife’s family came to his house and threatened his father, saying that the applicant had kidnapped the girl. They then contacted party members and, through them, lodged a complaint with the police;

   e)after the police spoke to his father, the applicant left the house. He lived in Jaipur prior to coming to Australia;

   f)his wife’s family members threatened to kill him about two months after the marriage;

   g)he feared harm from the BJP because he had worked for the Congress Party and was very popular. Also, he had married a Hindu girl;

   h)he feared harm from the Shiv Sena Party because his wife’s family supported it;

   i)he feared harm from the police because they supported Hindus and did not take action on behalf of Muslims; and

   j)he joined a cricket team in Jaipur about three months prior to coming to Australia. He came here with the team to play cricket and after the tour finished (in Mackay) he came to Sydney. The team was due to leave Australia on 10 September 2009 but he had no idea whether any of them had returned to India.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:

   a)based on the independent information available, the Tribunal accepted that there was “ethnic violence” against Muslims in India. However, it did not accept that the applicant himself had experienced serious harm or discrimination because of his religion, noting that there was no information before the Tribunal to this effect. To the contrary, the applicant had received an education, was accepted into a cricket team, travelled to Australia to take part in an international competition and gave evidence that his father was able to work to support him financially. The Tribunal did not accept that that applicant faced a real chance of persecution in India by reason that he is a Muslim;

   b)the applicant’s evidence about his marriage was lacking any relevant detail. The applicant had not been able to provide to the Tribunal information about the name, age or date of birth of his wife, nor was he able to specify the date of the wedding to within six months. As such, the Tribunal found that the applicant had not married a Hindu girl as claimed. Consequently, it did not accept that he had been accused by her family of kidnapping, that the police were looking for him or that he faced harm for this reason, whether from her family, the Shiv Sena Party or the BJP;

   c)the Tribunal did not accept that the applicant would be targeted by the BJP because of his involvement in the Congress Party. In this connection the Tribunal noted that the applicant’s involvement in that party had been minor and had ended some twelve months prior to him coming to Australia;

   d)the applicant claimed that he and his relatives had suffered greatly since the outbreak of Hindu-Muslim disputes in 1991 but did not provide any further information as to the nature of the actual suffering. Given this lack of detail, the Tribunal was not satisfied that the applicant’s relatives had been harmed by Hindus;

   e)based on the independent country information, which it preferred to the applicant’s contrary allegations, the Tribunal found that the Indian authorities do act to protect Muslims. It therefore rejected as untrue the applicant’s claim that many of his friends in similar situations had been tortured by the police and sent to gaol; and

   f)the Tribunal noted that twelve other members of the Jaipur cricket team touring Australia had made applications for protection in Australia, all of which were made between 24 and 30 September 2009 and that one of whom was residing with the applicant at the same address. When the Tribunal put this information to the applicant at the hearing and in a subsequent letter inviting him to comment, the applicant did not respond. In the circumstances, the Tribunal formed the view that there had been collusion between members of the Jaipur Colts cricket team in making protection visa applications in Australia. The Tribunal concluded that the applicant’s claims of harm in India were not genuine.

Proceedings in this Court

1. The amended application was pleaded as follows:

   1. The second respondent committed jurisdictional error by failing to address the applicants claim in the way they were made.

   Particulars

   (a)The applicant stated in his protection visa application that he was an active member of Congress Party.

   (b)He stated that he was threatened by BJP and RSS members because he married to a Hindu girl and converted to her Muslim religion.

   (c)The Tribunal did not consider the way he claimed that being a Muslim and got married to a Hindu girl in India was at risk of harm from radical Hindus, and not able to access effective protection.

First particular

1. The first particular of the allegation in the amended application, that the Tribunal failed to consider the applicant’s claims to have been an active member of the Congress party, cannot be made out. As noted earlier in these reasons the applicant claimed to fear harm at the hands of the BJP because he worked for the Congress party. The Tribunal makes specific reference to the claim related to the applicant’s membership of the Congress party at paras.22, 39, 51 and 58 of its decision record where it summarised evidence and submissions as well as exchanges at its hearing. Having referred to the presentation of the claim and the subsequent discussion of it, the Tribunal proceeded to consider it at paras.94-96 where it concluded that the applicant’s involvement in the Congress party was so minor and lacking in contemporaneity that he would be of no interest to the BJP.  For these reasons, the first particular has not been made out.

Second particular

1. The second claim which the applicant alleges that the Tribunal did not consider is his claim to have been threatened by BJP and RSS members because he had married a Hindu girl and converted her to Islam. The threshold issue in connection with this ground is the applicant’s claimed marriage as its occurrence is said to be the basis of the fear of harm from certain BJP and RSS members. The Tribunal referred to the alleged marriage at paras.40 and 59 of its decision record and to the fears concerning the BJP and the RSS at paras.51 and 52 but concluded at para.89, as a result of the consideration at paras.84-88 of its decision record, that there was no such marriage.

2. That being so, it concluded at paras.96 and 92 that there was no factual basis for the alleged fear of harm at the hands of the members of the BJP and RSS which was said to arise as a consequence of the marriage. 

Third particular

1. The third claim also depends for its factual foundation on the applicant having married a Hindu girl. However, as the Tribunal did not accept that the applicant had in fact married as he alleged, there was no need for it to consider whether he was at risk from radical Hindus as a consequence of it.

2. Even so, the Tribunal did consider the possibility of the applicant being targeted by Hindu extremists as well as his claim that because of violence aimed at Hindus and the alleged discriminatory policy of the Indian government it was very hard to survive “in a hostile environment”. However, although accepting the existence of communal violence in India, the Tribunal also accepted that the Indian authorities act to protect people from such violence and that he therefore had access to adequate state protection. 

3. For these reasons, the matters set out in the third particular of the allegation do not disclose a basis upon which the Tribunal’s decision should be set aside.

Submissions today

1. Finally, today the applicant raised issues going to the merits of his protection visa application. In essence, he sought a further review of his claimed entitlement to such a visa. The Court cannot undertake such a review and the Tribunal’s decision record does not support a conclusion that its findings were not open to it on the evidence or that its decision was illogical or irrational. The applicant’s submissions today do not disclose any jurisdictional error on the Tribunal’s part. 

Conclusion

1. Jurisdictional error on the Tribunal’s part not having been demonstrated, the application will be dismissed.

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

Date: 23 September 2010