FEDERAL COURT OF AUSTRALIA

SZDRV v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 926

SZDRV v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

NSD 270 OF 2005

LINDGREN J

1 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 8 February 2005 dismissing his application to that Court by which he had sought review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had made a decision on 15 April 2004, handed down on 11 May 2004, affirming a decision of the delegate of the respondent Minister (respectively ‘the Delegate’ and ‘the Minister’) not to grant to the appellant a protection visa.

2                     The appellant is an Indian citizen from Hyderabad.  He arrived in Australia on 4 December 2003, travelling on a visitor’s visa.

3                     On 15 January 2004, he lodged an application for a Protection (Class XA) visa.  His claim was that he feared persecution by his brother who wanted and wants to kill him in order to appropriate his assets.  His case was and is that so long as he is alive, his brother cannot access the assets.  The Delegate refused the application on 5 February 2004 and the appellant applied to the Tribunal for review of that decision on 1 March 2004.  The appellant attended a hearing before the Tribunal on 15 April 2004, and, as I said earlier, the Tribunal made its decision on that date and handed down its decision on 11 May 2005.

4                     A convenient way of setting out the appellant’s claims is for me to take them from the written submissions of Mr J A C Potts, counsel for the Minister on the present appeal:

‘4.        The appellant claimed that after studying in India and the USA, he had developed a successful software programming business.  In September 2000 his office was robbed, causing him financial difficulties.  He filed a complaint with police on 8 October 2000, and the subsequent investigation named his brother as the perpetrator of the theft.

5.         Subsequently, whilst the appellant was in the USA on business, his father-in-law’s house, where his pregnant wife was staying, was attacked by people threatening that they would kill the appellant if he did not withdraw the charges in the theft case.  His father-in-law was injured.  The appellant learnt on his return from the USA that his brother was planning to kill him in order to acquire his assets.  On 23 March 2001 the appellant was attacked.  He lodged a complaint with police.  He claimed that his brother spread rumours that he had duped him and other people to take their money.  The appellant’s brother made efforts to kill him in order to inherit his assets, as according to Indian law, assets could be passed to parents, brothers or legal heirs.  The appellant and his family relocated within India, but he was unable to sell his property in Hyderabad due to rumours spread by his brother.

6.         The appellant and his family went to New Zealand in January 2002.  The appellant returned to India and attempted to reach a compromise with his brother, whereupon his brother prompted false debtors to file an action against the appellant.’

5                     The Tribunal’s findings and reasons were briefly expressed as follows:

‘While I am sympathetic with the applicant’s situation, as explained to him at his hearing I am unable to find a Convention nexus in his claims, and that even if his brother used his political contacts against him I am not satisfied that the harm he fears is for reason of his real or imputed political opinion.  He has been able to avail himself of police protection but has not proceeded with charges against his brother at his mother’s behest.

Even if he was able to satisfy me of a Convention nexus, it would be reasonable to expect that he could relocate elsewhere in India.  He has been able to live some 600 km away in Bangalore in the past.  He speaks, reads and writes English, Telegu and Hindi fluently, has tertiary degrees and has had a successful business record.  Even if he is unable to have access to his capital he could find a position in a company where his experience would be suitably recompensed.’

6                     In the FMCA, the Federal Magistrate agreed that the appellant’s claims lacked the necessary Convention nexus.  I also agree.

7                     The appellant was legally represented in the FMCA and an argument was put that the Convention would be satisfied if the relevant political opinion was held by the brother and his associates.  The Federal Magistrate found, however, correctly in my view, that the claims made by the appellant before the Tribunal were not referable to the political opinion of his brother or the brother's associates.

8                     Rather, the claim made was that the brother wished to kill the appellant in order to appropriate his assets, and that the brother had been able to call in aid assistance from politically powerful associates of his.  There was no assertion by the appellant that his brother was a member of any political group or that the brother and his associates were pursuing any political purpose.

9                     It may be that in a different case an asylum seeker might be seen as politically uncommitted, inactive and neutral, yet be persecuted for that very reason by an individual or group who is or are politically zealous.  In such a case, although it might be said that the individual is being persecuted because of the political opinion of the persecutors, nonetheless, the individual would be persecuted for reason of political opinion within the Convention definition.  In such a case it matters little whether the position is described as one in which political opinion is held by the persecuted, the persecutors, or both:  the individual is targeted by reason of political opinion.  That, however, is not this case.  On any reckoning, the appellant was not singled out for persecution by reference to anyone’s political opinion – either his own or that of his brother:  see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (Brennan J), 240 (Dawson J), 257-258 (McHugh J).

10                  The other ground given by the Tribunal was that it was reasonably practicable for the appellant to re-locate within India.  The FMCA did not find it necessary to address this question in view of the Federal Magistrate’s finding that the Tribunal’s conclusion of lack of Convention nexus was not to be impugned.  The Minister has filed a notice of contention to the effect that the Federal Magistrate's decision should be affirmed on the ground that the appellant can avoid harm by re-locating within India and that it is reasonable for him to do so.

11                  Before me today, the appellant states that wherever he might go in India, his brother would pursue him with a view to killing him.  That precise question is not addressed expressly in the Tribunal’s reasons.  I have set out above, inter alia, what the Tribunal member said about re-location.  The statement was clearly based on a statement made by the appellant in a written statement dated 15 January 2004 supplied in support of his initial application for the protection visa of the same date.  The relevant part of the statement was as follows:

‘Thus fearing death and the future of my wife and our child, I went away along with my wife and kid from the place and lived there for about a year, leaving all my assets unused.  And the place was about 600 kms from my place of usual residence.  We spent that period a bit happily.  I could not even sell my properties as he or his gang was on continuous watch at my properties.  Thus I was becoming more tightened in all the ways.’

12                  There is not before the Court a transcript of the hearing before the Tribunal.  I do not know whether the appellant was questioned about re-location and I do not know whether he claimed that it would be futile because his brother would pursue him anywhere in India.

13                  On the only evidence of what was before the Tribunal that is before this Court, it does appear that the Tribunal was entitled to reach the conclusion that it did.  However, I think that the better course, particularly in view of the fact that the appellant is unrepresented before me, is to do as the learned Federal Magistrate did and that is not to decide the issue raised by the notice of contention.  It is, of course, not necessary for me to do so for the same reason that it was not necessary for the Federal Magistrate to do so.

14                  It appears that the Tribunal accepted the truthfulness of the appellant.  The Tribunal member said that she was:

‘ ... sympathetic with the [appellant’s] situation.’

15                  While I think that her decision on the question of Convention nexus is demonstrably correct, it may be that the case will be considered as one meriting attention under s 417 of the Migration Act 1958 (Cth).

16                  For the above reasons, the appeal will be dismissed with costs.

Associate:

Dated:              6 July 2005