SZKUP v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 6 September 2007, dismissing applications for judicial review made by the appellants in relation to a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 7 May 2007 and handed down on 24 May 2007, by which an earlier decision of a delegate of the respondent Minister not to grant the applicants Protection (Class XA) visas under the Migration Act 1958 (Cth) ("the Act") was affirmed. 2 The appellants are husband and wife and came to Australia from India, the country of their nationality. Only the appellant husband claimed to have Convention‑related grounds for the grant of a protection visa under the Act. The claims of his wife, the second appellant, were based upon the circumstance that she was and is his dependant, and would stand or fall upon the outcome of her husband's claims. Only the appellant husband has appeared in court today to prosecute his appeal and that of his wife, and he has made it clear to me that his wife's case turns entirely on the circumstance of dependency, and that she has no independent claim under the Convention of her own. In the circumstances, I shall deal with the appellant husband's appeal and I shall refer to him as "the appellant." 3 The circumstances in India upon which the appellant relies to contend that he has a well-founded fear of persecution relate to a pharmaceutical business in which he and other members of his family were involved. A dispute arose, it seems, as a result of the unwillingness of a new member of that partnership to pay the agreed price of his accession to the partnership to the retiring partner, who was not a member of the appellant's family. It seems that, after a period of time, the retiring partner had recourse to what might be described as direction action in order to prevail upon the new partner to make payment, and had that recourse against the appellant himself and other members of his family. The appellant and his father moved to Mumbai and re-established their business on a new basis, but the difficulties continued. It seems that there was a motor accident in which the appellant and his brother were involved, and the brother was injured to the extent which involved him losing the use of one of his hands. Coincidentally, there was a substantial bomb blast in Mumbai, and the appellant alleges that the retiring partner used his political influence to allege that the appellant himself had, in some way, been implicated in the blast. By then, the appellant had joined the BJP party and it is said that the retiring partner had influence with the Congress Party. It is by reason of these circumstances that the appellant weaves politics into what commenced as a business dispute, albeit a dispute in which he himself was not directly involved. 4 The Tribunal made the following findings about the appellant's claims and the factual evidence upon which they were based. It refers to the appellant as the "first named applicant" or as "the applicant": In dealing with this application the Tribunal has formed the view that the first named applicant has suffered considerable difficulties as a result of the break down in the relationship between the first named applicant's family and their former business partners. The Tribunal accepts that the applicant worked in his father's pharmaceutical business, that his father's old business partner left the business in 1994-1995, that he was replaced with a new business partner in 1995, that the new partner agreed to buy out the old partner's interests in the business and subsequently failed to pay him the money, that the old partner's associates harassed and threatened the applicant and his family as a result, that his family relocated their business to Mumbai in 1999 and set up a new company without any partners, that the applicant joined the BJP party in 2000 and became an active member, that the applicant and his brother were involved in a motor vehicle accident on 30 April 2001 and his brother suffered serious injuries as a result, that the government of India set up an inquiry into the bomb blast in Mumbai and that the applicant's former business partner tried to implicate him in the bomb blast. The Tribunal is of the view that the above situation arose as a result of financial and business dealings between the applicant and his family on the one hand and their former business partners on the other. The Tribunal is not satisfied that the harassment and threats that the applicant and his family were subjected to was in any way connected to the applicant's political opinions or his membership of the BJP party. The Tribunal does not accept that the applicant reported these incidents to the police and that the police did not do anything about it. Independent Country Information indicates that the Indian government is a democracy and generally respects the rights of its citizens. The country information on India does not suggest that the first named applicant would be denied state protection if required by him or that he would be prevented from initiating legal proceedings against alleged perpetrators of violence against him or his family and having those proceedings determined by an independent judiciary. The Tribunal finds that there is no real basis for the applicant to claim fear of persecution. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his political opinion or any other Convention reason now or in the reasonably foreseeable future should he return to India. 5 In his application for judicial review in the Federal Magistrates Court, the appellant relied upon two grounds: