SZSLG v Minister for Immigration

[2015] FCCA 404

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 404

Catchwords:
MIGRATION – Refugee Review Tribunal – application for a constitutional writ – Protection (Class XA) visa – application dismissed.

Legislation:  
Migration Act 1958

Applicant: SZSLG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1228 of 2014

Judgment of: Judge Street

Hearing date: 24 February 2015

Date of Last Submission: 24 February 2015

Delivered at: Sydney

Delivered on: 24 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Taylor

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1228 of 2014

SZSLG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ in respect to which the Court has jurisdiction under s.476 of the Migration Act 1958.  The Tribunal by a decision on 10 April 2014 affirmed the decision of the delegate on 1 August 2012 not to grant the applicant a Protection (Class XA) visa.  The applicant sought to raise the following grounds of jurisdictional error:

   1. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   2. The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from his clients.

   3. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.   

2. It was identified to the applicant that the first ground appeared to mirror an earlier ground that the applicant had advanced in an earlier challenge which went on appeal to the Federal Court of Australia and which gave rise to the further Tribunal hearing.

3. Having looked at the material before the Tribunal, it is clear that the Tribunal arrived at its decision in accordance with the provisions of the Migration Act 1958 and did so according to law.  There is no substance in the first ground of alleged jurisdictional error.

4. In relation to the second ground, it was a matter for the Tribunal to weigh the applicant’s evidence and to make the findings of fact that it did.  It was clearly open to the Tribunal to find to the findings it did in relation to the applicant.  There is no substance in the proposition that the Tribunal did not consider the whole of the applicant’s claims.  The reasons carefully identified the relevant refugee criterion and, in particular, the requirements for a protection visa in respect of a non-citizen and, materially, the Tribunal found in relation to the applicant’s claims and alleged fear of harm:

   65. …it is not satisfied that such harm is motivated by one or more of the Convention grounds.  The Tribunal therefore finds the applicant does not have a well-founded fear of Convention persecution.

5. The applicant’s claims to persecution arose out of having been a salesman selling insurance policies for a particular entity.  The applicant identified particular incidents that he asserted were related to his role in that company, as well as a role he played in selling policies to members of the Lok Dal party. 

6. The Tribunal carefully set out the applicant’s evidence in this regard and materially put to the applicant:

   47. The Tribunal put to the applicant country information indicated no reports of targeting of MetLife insurance salespeople and invited the applicant to comment. He replied that many incidents take place and are not reported, especially if a person is poor.

7. The Tribunal proceeded to assess the claims of the applicant, having found that he was a national of India and that India is the country of reference for the purpose of application of Convention.

8. The Tribunal found that certain aspects of the applicant’s evidence were inconsistent and it set out an example of that inconsistency.  The Tribunal did accept that it was plausible that the applicant may face the risk of harm from those who purchased policies and lost money.  The Tribunal clearly found that the alleged harm was not for a Convention reason, and that the applicant did not have a well-founded fear of persecution for a Convention reason. On a proper reading of the Tribunal’s decision, the Tribunal found that the applicant is not a person in respect of whom Australia has a protection obligation under the Refugees Convention and consequently, the applicant did not satisfy the criteria of s.36(2)(a).

9. The Tribunal addressed the inconsistencies in relation to the alleged attack on the applicant and found that it did not accept the attack occurred and was not satisfied that the applicant needed any treatment. 

10. In relation to an incident involving a truck driver, the Tribunal was not satisfied that the incident was motivated for reasons of the applicant’s activities as a salesman.  The Tribunal was not satisfied that the incident, if it occurred, was motivated for reasons that the applicant had supported the Lok Dal party or for his political opinion or for any other Convention reason. 

11. Materially, in relation to the Lok Dal party, the Tribunal found as follows:

    62. The Tribunal considered the applicant's claim that he is a member of the Lok Dal Party. Having regard to the evidence before it, the Tribunal is not satisfied that the applicant was a member of the party. The Tribunal found the applicant's claim that he campaigned for the Lok Dal Party during the election to be unconvincing and contrived. While it is prepared to give him the benefit of the doubt and accept that he supports the Lok Dal party, it does not find on the evidence presented that he has a profile where former policyholder clients, or members of the Congress Party, would be motivated to seriously harm the applicant for reasons of his political opinion.

12. The Tribunal also considered the applicant’s claims in relation to his family.  The Tribunal said it:

    63. …The Tribunal does not accept this claim; it found his claim as to his activities with the Lok Dal party to be embellished, and considers this was done for the purposes of bolstering his claims before this Tribunal. …Having regard to all the evidence, the Tribunal is satisfied that adequate and effective state protection would be available to the applicant in his circumstances, and that the Tribunal is not satisfied that the applicant would be denied police protection for a Convention ground, or for any reason should he seek it in India.

    64. …Considering the facts of this case, the Tribunal is not satisfied that a group comprising MetLife Insurance salespersons can be characterised as a 'particular social group' as that term has become accepted to mean. In the alternative, and in the event that such a group is a 'particular social group' the Tribunal is not satisfied that the applicant would be targeted for reasons of his membership of such a group.

13. And the Tribunal concluded:

    65. Having regard to all the evidence, the Tribunal is not satisfied that the applicant will be targeted for harm by members of the Congress Party or that the Indian police will target the applicant for harm so it does not accept his claim that members of these entities would track him down for harm across India.

14. It was in light of these findings that the Tribunal turned to the further consideration of whether or not the applicant could, in any event, relocate in India in relation to his expressed concerns as to retribution from people to whom he sold policies.  Materially, the Tribunal held:

    67. Having regard to all the evidence, the Tribunal is not satisfied that the applicant would be targeted for harm by members of the Congress Party, or that the Indian police would target the applicant for harm so it does not accept his claim that members of these entities would track him down for harm across India. In all the circumstances, the Tribunal finds that it would be reasonable for the applicant to relocate to another part of India, for example a large city such as New Delhi or Mumbai, or elsewhere, where there is no appreciable risk of serious or significant harm.

15. The Tribunal addressed the reasonableness and practical capacity of the applicant to relocate in that regard, and found that the applicant appeared fit, intelligent, articulate and able to speak English and that it would not be unreasonable for him to relocate somewhere where there is not a real risk of significant harm.

16. Those findings by the Tribunal, that the applicant is clearly intelligent and can speak English and is obviously an effective salesman, are obvious from what is in his application.  They are reasons that make it open to the Tribunal to find as it did that he could relocate.  In those circumstances, the findings of the Tribunal were clearly open and it cannot be said that the findings lack an evident and intelligible justification.  The Tribunal proceeded and said:

    68. For the reasons set out in the preceding paragraph, the Tribunal finds that pursuant to s.36(2B)(a) of the Act, the risk faced by the applicant is taken not to be a real risk as it would be reasonable for the applicant to re-locate to an area of Indian where there would not be a real risk he will suffer significant harm.

17. Accordingly, the Tribunal found that the applicant did not meet the refugee criteria under s. 36(2)(a) and the Tribunal considered the alternative criterion under 36(2)(aa) and was satisfied that the applicant was not a person in respect of whom Australia has protection obligations.

18. It is for those reasons that the Tribunal affirmed the decision of the delegate.  Having drawn the applicant’s attention to the concerns that the grounds did not identify any jurisdictional error, the applicant sought to identify his fear in relation to the networking of those to whom he sold policies all over India and also that the Tribunal could not properly understand the lack of education of people of India and lack of willingness of those uneducated people to appreciate their losses were not the applicant’s responsibility.

19. I am satisfied these were all matters that were taken into account by the Tribunal.  It was for the Tribunal to determine what weight it gave the applicant’s claims and the findings were open on the material before the Tribunal.  I am satisfied that there was no jurisdictional error by the Tribunal in the conduct of the review or in its decision-making process.  Accordingly, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 February 2015