SZQLR v Minister for Immigration

[2012] FMCA 141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 141

MIGRATION – Application for a judicial review of a decision of the Refugee Review Tribunal – Applicant is an Indian citizen – Tribunal found no ‘serious harm’ and harassment not due to a Convention reason – Tribunal did not fail to consider any claim before it or misapply tests applying to a finding of ‘serious harm’ or relocation – application dismissed – costs granted.

Migration Act 1958 (Cth), s.91R

Applicant: SZQLR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1562 of 2011

Judgment of: Whelan FM

Hearing date: 16 February 2012

Date of Last Submission: 16 February 2012

Delivered at: Melbourne

Delivered on: 16 February 2012

REPRESENTATION

Applicant: Applicant appeared in person

Counsel for the Respondents: Ms Katherine Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

SYG 1562 of 2011

SZQLR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 June 2011 affirming a decision of a delegate of the Minister of 28 March 2011. That decision was to not grant the Applicant a protection (Class XA) visa.

Background

1. The Applicant is a citizen of India. He arrived in Australia on 9 June 2010 as the holder of a UC 456 Business Short Stay visa. On 20 July 2010 he made an application for a protection visa.

2. The delegate characterised the Applicant’s claim in terms of him fearing harm because he was an ex-Shiv Sena Party member. The delegate accepted the Applicant’s claim of membership of Shiv Sena, and later of Samajwadi. The delegate also accepted that the Applicant had received demands for money from Shiv Sena both while a member and after he left the party. The delegate was of the view that the Applicant’s fear of harm related to criminal activity which was unrelated to a Convention reason. The delegate also found that state protection was available.

3. On 28 March 2011 the delegate refused the application, and on 28 April 2011 the Applicant lodged an application for a review of that decision by the Tribunal. The Applicant attended a hearing of the Tribunal on 22 June 2011, and on that day the Tribunal affirmed the decision not to grant him a protection visa. On 22 July 2011 he lodged this application.

The Findings of the Tribunal

1. The Tribunal found that the Applicant was a credible witness who had given consistent accounts of his past. The Tribunal found the Applicant had been on two occasions hit with sticks, and had on a number of occasions been harassed by persons demanding donations to Shiv Sena. The Tribunal found that these demands were made because the Applicant had been a member of Shiv Sena, and had made donations in the past. The Tribunal also accepted that he had brought proceedings against a Mr S which had caused Mr S’s emnity to him.

2. The Tribunal found that since 2005, when he left Shiv Sena and 2007, when he sued Mr S, he had been subject to pressure and harassment to make donations to Shiv Sena, but that nothing more serious had happened to him. 

3. The Tribunal did not consider that the Applicant had ever been seriously harmed or that he faced a real chance of serious harm should he return to India. Further, the Tribunal considered that there had been ample time for those who had threatened the Applicant to act upon those threats, and they had not done so. The Tribunal therefore found that the Applicant’s fear was not a well-founded fear of persecution. The Tribunal also considered that the Applicant’s claims were localised, that Shiv Sena had had limited success in establishing a presence in other states, and that internal relocation within India would be reasonable, in the circumstances.

The Grounds

1. The grounds for the application are as follows.

   ·Firstly, the Tribunal failed to consider an integer of the Applicant’s claims in failing to consider whether or not as a ‘liberal’ Hindu he was at risk of harm from ‘radical’ Hindus, and not able to access effective protection. 

   ·Secondly, the Tribunal failed to consider properly the test whether the Applicant would suffer serious harm if asked to relocate in India. 

   ·Thirdly, the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth) (“the Act”).

   ·Fourthly, the Applicant satisfies the four key elements of the Convention definition as detailed in the Tribunal’s decision. 

2. The Applicant was given the opportunity to make written submissions in support of the grounds, but did not do so.

3. At the hearing he was invited by the Court to make submissions with respect to each of the grounds as set out in his application. The Applicant’s submissions can be summarised as follows. 

   ·Firstly, if he was to return to India he would not be able to get protection there. 

   ·Secondly, that all his property and business was in A, and if he tried to relocate that would be impossible. How would he start a business or a new life without money? 

   ·Thirdly, he had evidence that he would not get state protection because he made reports to the police who took no steps. 

   ·Fourthly, the Tribunal did not take into account all of the documents and evidence he provided. 

The Submissions

1. The First Respondent made both written and oral submissions.

   
   

   In relation to ground 1, that the Tribunal failed to consider an integer of the Applicant’s claim that as a ‘liberal’ Hindu he would face harm from ‘radical’ Hindus, the First Respondent submitted that no such claim was actually ever made by the Applicant. In relation to the ground that the Tribunal failed to consider properly the test whether the Applicant would suffer serious harm if asked to relocate, the First Respondent says that this was a finding of fact for the Tribunal to make. Its conclusion that the Applicant’s claims of harm were insufficient to amount to persecution was open to it as part of the fact-finding process. The Tribunal considered what amounted to ‘serious harm’, and did not accept that the harassment the Applicant had suffered amounted to serious harm. 

2. The Tribunal also concluded that, given the significant passage of time that had passed since the threats began without those threats being carried out, that they were hollow threats. Nor was there any error in the Tribunal’s alternative finding that the Applicant’s fear of harm was localised to A, and that he could relocate within India. The Tribunal considered the Applicant’s submissions in this regard, and the First Respondent refers to paragraph 77 of the Court Book at page 138, and to the conclusions reached by the Tribunal at paragraph 102 on page 142 of the Court Book. 

3. In relation to the Applicant’s claim that he would receive no protection, the First Respondent says that that issue does not arise because the Tribunal found there was no serious harm suffered by the Applicant, and therefore no well-founded fear of such harm in the future.

4. In relation to grounds 3 and 4, the First Respondent submits that these are not proper grounds of review, but are in fact submissions. In the present case the Tribunal accepted many of the Applicant’s factual claims, but found it was not satisfied that those claims gave rise to serious harm. In considering the claims, the Tribunal did accept the documents submitted by the Applicant, and the First Respondent refers to paragraph 24 at page 130 of the Court Book where the Tribunal refers to the documents. Secondly, the Tribunal accepted that the Applicant had brought proceedings against Mr S, and refers to this at Court Book page 140, paragraph 88, but concludes at paragraph 93, Court Book page 141, that any harassment or threats by Mr S did not give rise to a real chance of serious harm in the reasonably foreseeable future. The First Respondent submits that essentially in grounds 3 and 4 the Applicant is inviting the Court to undertake a merits review of the evidence which it cannot do.

Conclusions

1. The Applicant relies on four grounds in his application for judicial review. The first of these alleges a failure on the part of the Tribunal to consider whether as a ‘liberal’ Hindu he was at risk of persecution by ‘radical’ Hindus. The Applicant at no stage in his claims or in the record of what occurred at the Tribunal hearing, as set out in the Tribunal’s decision record, described himself as a ‘liberal’ Hindu. His claims set out in the material relate to his fear of harm not because of any particular political views expressed by him, but because after leaving Shiv Sena he ceased to make donations to the party, and was under pressure to continue to make donations to it. The Tribunal may be under an obligation to consider a claim not expressly made by an Applicant if such a claim can be readily discerned from the material before it. In this case, neither expressly nor by implication, does the Applicant make a claim to fear persecution as a ‘liberal’ Hindu. The application insofar as it relies on this ground must therefore fail.

2. The second ground appears to allege that the Tribunal failed to consider properly whether the Applicant would suffer serious harm if asked to relocate in India. This seems to conflate two tests. Firstly, whether the Applicant has a well-founded fear of persecution which under s.91R of the Act must involve serious harm, and secondly, whether it is reasonable for the Applicant to relocate within India. At Court Book, page 127, paragraph 13, the Tribunal sets out the definition of ‘serious harm’. At paragraphs 86 to 96 of its decision,[1] the Tribunal considered whether the Applicant had a well-founded fear of persecution, and, in doing so, considered whether he had a real chance of serious harm. Based on the material before the Tribunal, I am unable to see where the Tribunal failed to apply the relevant test to those facts in reaching its conclusions.

   [1] Court Book, pages 139-141.

3. Further, at paragraphs 98 to 102,[2] the Tribunal considered if it would be reasonable for the Applicant to relocate to another part of India. In doing so, the Tribunal referred to the relevant consideration of whether under all the circumstances it would be reasonable to expect the Applicant to relocate, including whether he faced the risk of Shiv Sena tracking him down in another part of the country. The Tribunal’s conclusions on this were made with reference to the material before it, and took into account material about Shiv Sena which had been put by the Applicant, and I refer to paragraph 76 on page 138 of the Court Book. There was a sound basis for the Tribunal’s conclusions.

   [2] Court Book, pages 141 to 142

4. It is not clear what precisely are the requirements of the Act which the Applicant alleges that the Tribunal failed to apply in ground 3 and ground 4. It appears essentially to be an allegation that the Tribunal reached a wrong conclusion on the material before it. Both of those grounds appear to go to the merit of the Tribunal’s decision, and therefore fall outside the ambit of a judicial review. For these reasons the application discloses no jurisdictional error, and the application is therefore dismissed with costs.

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

Date:  29 February 2012