SZLWB v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Magistrates Court. On 21 November 2008, that Court made an order dismissing the appellants' application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship refusing to grant Protection (Class XA) visas to the appellants. The appellants allege that the Tribunal committed jurisdictional errors in the course of reaching its decision and that the Federal Magistrates Court erred in failing to so conclude. They seek orders that the appeal be allowed, that the order of dismissal made by the Federal Magistrates Court be set aside and that constitutional writs directed to the Tribunal be issued.

Facts 2 The appellants are husband and wife who arrived in Australia from India in April 2007. They are both citizens of India. The first appellant's application for a protection visa was based on Convention grounds and the second appellant's application was based on her relationship with the first appellant. In those circumstances, it will be sufficient to address the issues in relation to the first appellant and, for convenience, I will refer to the first appellant as the appellant. 3 The Tribunal accepted the appellant's evidence in a number of areas and the summary of facts which follows is based on the Tribunal's findings. I will indicate those areas where the Tribunal rejected the appellant's evidence or claims. 4 The appellant was born in Calcutta, India, on 28 December 1977. He was educated to high school level in Calcutta. He lived at the same address in Calcutta from 1997 to 2007. The appellant established a successful business, working first as a contractor and then, in 2005, registering his own business. He received a good deal of work from an organisation known as Bharat Sanchar Nigam Limited ("BSNL") or Calcutta Telephones. 5 The appellant's parents were members of the Communist Party India (Marxist) ("CPI(M)") and he shared a number of their ideals. In 2004, the appellant's father walked out of the CPI(M) party in protest against corrupt leaders. He joined the Trina Mul Congress ("TMC") and the appellant did likewise. The Tribunal found that the conflict between the appellant's father and the CPI(M) had been resolved. The appellant provided financial support to the TMC at local elections held in April 2006. 6 A former employee of the appellant, who he dismissed for theft, became a business rival of the appellant. 7 In June 2006, the appellant was attacked with a knife in the carpark of his business premises. Neither the appellant nor his driver saw his attacker. The appellant claimed that his attacker was a CPI(M) leader, but the Tribunal was not satisfied that this was the fact. 8 In January 2007, whilst travelling in a motor vehicle with his wife, the appellant was chased by a person or persons unknown. His wife suffered a miscarriage in the chase which ensued. The pursuers could not be identified and the Tribunal considered that the appellant's claim that the chase was related to the CPI(M) and his involvement in the TCM was speculative. 9 The appellant and his wife have been threatened over the telephone and at his business premises. The threats appear to have started at around the time of the elections in 2006. The threats were due in part, at least, to the appellant's support of the TCM during the elections. Neither the appellant nor his wife were able to identify the persons who made these threats, but the Tribunal said it appeared that they were not purely random. 10 The motives behind the behaviour of his former employee and then business rival were Convention related. The Tribunal said: "In his evidence, the primary applicant said that he had many business rivals who resented his success. The primary applicant also told the Tribunal that many of his business rivals were involved with the CPI(M). The Tribunal accepts that this is possible." 11 A significant reason for the threats and attacks against the appellant and his wife was business rivalry and resentment towards the appellant who has been very successful in his business. Successful businessmen in India constitute a particular social group within the Convention and the appellant is a member of that group. The appellant has suffered harm as a result of his membership of that group. The Tribunal expressed the following important conclusions: "Consequently, the Tribunal is prepared to accept that the primary applicant's political involvement and business success are reasons for the harm which he has suffered in India. The Tribunal is satisfied that the harm amounts to serious harm, as the applicants have been threatened with death and assaulted. The Tribunal is therefore prepared to accept that the applicants have been persecuted for Convention related reasons, specifically political opinion and membership of a particular social group by the primary applicant." 12 The appellant had not provided any support to the TMC since the elections in 2006 and he was too busy to be involved. He has not been politically active since coming to Australia. The appellant's political involvement in India was in fact limited both in time and actual involvement. The Tribunal concluded from all the circumstances that it could not be satisfied that the appellant would be active in the TMC or in politics if he returned to India. The Tribunal found that, although the appellant had sold his business in India, he was clearly a talented businessman who would continue his business activities if he returned to India. 13 The Tribunal then turned to consider the questions of whether the appellant would be able to access adequate state protection in India and whether the appellant could relocate to another part of India to avoid persecution by the CPI(M). The Tribunal found that the appellant would be afforded adequate state protection in relation to any harm the appellant feared from the CPI(M) and business rivals in India, and considered the relocation issue "[f]or the sake of completeness". 14 With respect to the issue of adequate state protection, the Tribunal considered the police response to the incidents involving the appellant in June 2006 and January 2007 respectively. The Tribunal found that the police had responded to both incidents and that the police had not proceeded because of the difficulty in tracing the unidentified perpetrators of the crimes. This indicated that the authorities would be willing and able to provide adequate state protection if the appellant and his wife were threatened or harmed in the future. The Tribunal said that the appellant had not provided any independent information as to a lack of state protection in his area or in India generally, in relation to TMC members, and the Tribunal said that it had not found any information to indicate that state protection would be withheld if the appellant faced harm for a Convention reason. The Tribunal said that there was no independent information to establish a link between the CPI(M) and the police. The appellant had claimed that there was such a link and that the CPI(M) had a good relationship with the police. The Tribunal found that the police were unable to pursue the perpetrators of the attacks because of a lack of identification, not a lack of willingness to do so. The Tribunal referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ("Respondents S152/2003"). The Tribunal said that it was satisfied that the police had responded in an appropriate and adequate manner in relation to the incidents involving the appellant in June 2006 and January 2007 respectively, and that the police would provide an adequate level of protection to the appellant and his wife should there be any threats in the future. 15 With respect to the issue of relocation, the Tribunal noted that Indians were free to move within the country with the exception of the states of Jammu and Kashmir. The harm suffered by the appellant was "closely related" to his business activities in Calcutta, in particular his contract with BSNL and his support for the TCM in the local elections in April 2006. The Tribunal said: "This leads the Tribunal to conclude that there is a very strong local element to any harm which the applicants have suffered. Should he relocate to another part of India, this local element would be removed and the antagonism and persecution from political and business opponents would not exist." 16 The Tribunal noted that India had a democratically elected government, is essentially governed by the rule of law and has a judiciary "which is independent, albeit slow-moving". The Tribunal concluded that the appellant would not suffer persecution because of his political activity and views and his support of the TCM in the elections in 2006 and that he would not suffer any harm or persecution because of his business success in another part of India. The Tribunal expressed the following conclusion with respect to the issue of relocation: "The evidence from the applicant indicates that he has significant skills and business acumen which would allow him to work and provide financially for his family in another part of India. He does not have dependents who require him to specifically remain in Calcutta, as indicated in his evidence about his family. The Tribunal finds that it would be reasonable, having regard to all the applicant's circumstances, for him to relocate to one of a number of other areas in India." 17 The Tribunal found that the appellant does not have a well-founded fear of persecution for Convention reasons if he returned to India and it affirmed the delegate's decision with respect to both the appellant and his wife.