Applicant M47/2005 v Minister for Immigration & Citizenship

[2007] FCA 1778

FEDERAL COURT OF AUSTRALIA

Applicant M47/2005 v Minister for Immigration & Citizenship [2007] FCA 1778

MIGRATION – Refugee Review Tribunal not obliged to deal with matters not articulated by the applicant and not clearly arising from materials before it

Migration Act 1958 (Cth) s 424A

Applicant M47/2005 v Minister for Immigration and Citizenship [2007] FMCA 1278
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

APPLICANT M47/2005 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 831 OF 2007

BUCHANAN J
27 NOVEMBER 2007
SYDNEY - VIA VIDEO-LINK WITH MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 831 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT M47/2005
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	27 NOVEMBER 2007
WHERE MADE:	SYDNEY - VIA VIDEO-LINK WITH MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 831 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT M47/2005
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	27 NOVEMBER 2007
PLACE:	SYDNEY - VIA VIDEO-LINK WITH MELBOURNE

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of India.  He arrived in Australia on 23 July 2003.  On 18 August 2003 he applied for a protection class (XA) visa.  The application was refused by a delegate of the Minister for Immigration and Citizenship (‘the Minister’) on 19 November 2003.  He applied to the Refugee Review Tribunal (‘the RRT’) for a review of the delegate’s decision.  The RRT, by decision handed down 12 December 2004, affirmed the delegate’s decision.  That decision was set aside by consent on 28 April 2006 and the matter was reconsidered by the RRT.  By decision handed down 7 December 2006 the RRT (differently constituted) again affirmed the delegate’s decision.  The RRT decision was then challenged in the Federal Magistrates Court of Australia (‘the FMCA’).  On 19 June 2007 the Federal Magistrate rejected the challenge (Applicant M47/2005 v Minister for Immigration and Citizenship [2007] FMCA 1278). Now the matter comes before this Court on appeal from the FMCA.

2. Prior to the hearing in this Court the appellant was directed to file written submissions.  He did not do so.  When the hearing of the appeal commenced the appellant stated that he had been unable to secure any assistance from refugee organisations and wished to obtain the services of a lawyer.  To do that he would need to work to pay the lawyer’s fees.  He asked that the matter not proceed for six months.  I indicated I would treat his statements as an application for an adjournment.  The adjournment was opposed by counsel for the Minister who informed me that no notice of any application or request for it had been given.  I declined to adjourn the appeal and indicated to the appellant that it would proceed.  I did so because the decision of the RRT had been given almost 12 months earlier, the decision of the FMCA almost five months earlier, and no notice had been given to the Minister.  I took the view that an adjournment in those circumstances was not warranted.

3. The appellant made no oral submission in support of his appeal.  The result is that the only material before the Court advancing the appellant’s position is the statements in his grounds of appeal, to which I will refer in due course.  Despite the fact that the appeal lacks any support by way of argument it is desirable that I deal with the matters which arise from the decision of the RRT which was under challenge in the FMCA and the grounds of appeal advanced in this Court.

4. The appellant claimed that he feared persecution in India because in 1993 (later the appellant said 1995) his brother-in-law was suspected to be involved in the murders of a Hindu leader, Murugun and the wife of another Hindu leader, Muttu Krishnan, during riots in that year.  In 2003 another Hindu leader, Mr Suresh was stabbed.  The appellant was in a position to say (and give evidence) that one Jafarullah was not responsible, although arrested by police.  He was threatened with violence or death if he gave evidence for Jafarullah (by the police and by Hindus) and if he did not (by Jafarullah’s Muslim associates).  His house was set alight by Hindus while he and his family slept.  Both Hindus and Muslims stated their intention to murder him, according to the appellant and so he fled to Australia.  The RRT rejected the appellant’s factual claims.  

5. The RRT decision gives a detailed account of the hearing at which the appellant appeared and the discussion which took place with the appellant about his claims.  Amongst the specific findings it made are the following:

   ‘The Tribunal does not accept the applicant’s brother-in-law was implicated in the murders of Hindu leader Murugun or the wife of Hindu leader Muttu Krishnan, as he claimed.

   …

   … the Tribunal does not accept the applicant’s wife’s family was being harassed or threatened by either the RSS or any other Hindu group or the police or any other authorities such as the CID either before the applicant married into the family or after the marriage.

   …

   The Tribunal does not accept the applicant was ever attacked by any Hindu groups or thugs associated with them, as he claimed.

   …

   As the Tribunal has found the applicant’s brother-in-law was not implicated in the murders of two people in 1995 and he was not threatened against marrying his wife by the RSS and other Hindu groups or either he or his wife’s family were harassed and threatened by these Hindu groups or the authorities, the Tribunal does not accept the applicant ever made any complaints to the police, which were not investigated, and he subsequently sought the assistance of higher authorities in the police, which resulted in him being threatened by the Nagore police because of his complaints.

   …

   Given the inconsistency in the applicant’s evidence as to who came and threatened him not to give evidence in support of Jafarullah, the Tribunal does not accept he was warned by either the police or the RSS as he claimed.  As the Tribunal does not accept the applicant was warned by the RSS not to give evidence in support of Jafaraullah, it does not accept the RSS burnt down the applicant’s house with him and his family in it.

   …

   The tribunal therefore does not accept the applicant and his family’s home was burnt down and they were forced to flee and live with others as a result.  The Tribunal accepts the applicant’s in-laws and wife and child may be living in the places the applicant claimed since he came to Australia but it is not satisfied their living arrangements were altered because of any damage to their home by fire at the hands of the RSS or because of any fear they face from the RSS as a result of his presence at the police station during the incident when Shankar was killed.

   It follows, the Tribunal does not accept the applicant went to Madras because he feared for his life from the RSS, the police and the TMMK.  The Tribunal does not accept the applicant’s claim the RSS and TMMK were searching for him and had decided to have him murdered by professional thugs in Madras.’

6. The appellant’s case faced two other very significant difficulties.  The first was expressed by the RRT as follows:

   ‘Even if the Tribunal were to accept the applicant was warned against giving evidence by the RSS, the police and the TMMK as he claimed, his house was set fire to by the RSS and he and his family had to flee as a result, the Tribunal finds the essential and significant reason these different parties were interested in the applicant was because of the evidence he could provide in the criminal case against Jafarullah.  Although the Tribunal recognises that the fact the harm the applicant fears arises because of evidence he may provide in the criminal case does not preclude a finding that the applicant also feared that harm because of his political opinion, the Tribunal is not satisfied that his political opinion, any imputed political opinion or any other Convention reason would constitute an essential and significant reason in this case.’

7. The second additional difficulty is that the RRT found the appellant could relocate.  It said:

   ‘If the applicant continued to have a subjective fear of persecution from the RSS, TMMK and the police the Tribunal finds it would be reasonable for the applicant to relocate to another part of India.  The Tribunal notes the applicant had shown himself capable and flexible by coming to Australia where he had no family or friends for support, he was educated and had employment experience as a business owner, shop assistance and office worker.  The applicant’s wife and child and in-law’s had relocated around the time of the applicant’s departure and he made no claims that they had experienced any difficulties as a result, even though they are still living in the State of Tamil Nadu.’

8. There was one final claim which was made by the appellant at the hearing which was rejected by the RRT in these terms:

   ‘At the conclusion of the hearing the applicant claimed he would have a lot of problems if he returned to India from an extremist group called Krishna Davisaram, which he claimed was formed by Thunga Mutthu, Suresh and Shankar.  He claimed these people had set up camps everywhere training people to be extremists and preaching violence and this was all endorsed by the government.  The Tribunal notes this is the first time the applicant raised this claim, having not mentioned it in either his statutory declaration or his hearing with the first Tribunal.  The Tribunal has taken into consideration the applicant’s explanation for his failure to raise this claim prior to the hearing being due to the fact the group had only recently been formed at the beginning of 2006.  However the Tribunal found the applicant’s evidence regarding this group to be vague and lacking in detail.  He did not know when the group was actually formed and referred to it being in all the newspapers in the last 6 months. As the Tribunal does not accept the applicant’s brother-in-law was implicated in the murder of Muttu Krishanan’s wife and therefore neither he or his wife’s family had any problems from any Hindu groups as a result, the Tribunal does not accept the applicant’s claims that he would be targeted by this alleged group.  The Tribunal therefore finds the applicant’s fears of persecution are not well-founded.’

9. The challenge which the appellant brought to the decision of the RRT in the FMCA depended, if it were to succeed, on showing some jurisdictional error in the decision made or process followed by the RRT.  The FMCA found that no error of either kind had been established. 

10. The grounds of appeal to this Court are as follows:

    ‘a)I respectfully submit that the learned Magistrate erred in concluding that there was no need for to consider that my claim of persecution for reason of my being a Muslim Tamil member of the TMMK party has no legal basis.

    b)The tribunal was entitled to consider and use the evidence I gave to the First tribunal, however the Tribunal must have a duty under section424A of the Act to provide me that adverse information for to comment. The Tribunal has not done so and the learned magistrate was erred in not hold with me on this point.

    c)The learned magistrate erred in concluding that there was no need for the Tribunal to assess my claim against my race/religion as a Tamil/Muslim with out realizing the Tribunal functions as an inquisitorial body and it is mandated to do so.’

11. As to the first ground of appeal, in her decision the Federal Magistrate said:

    18.      The applicant did not in fact claim that he was being persecuted because he was a member of the TMMK coupled with his race or religion.  The applicant claimed that he was being persecuted for particular reasons relating to Sidiq and Jafarullah.  The Tribunal rejected those reasons.  There was nothing in the material that suggests that a Muslim Tamil member of the TMMK as such would be persecuted.  Accordingly, there was no need for the Tribunal to consider whether a Muslim Tamil member of the TMMK as such might face persecution.’

12. This passage appears to be what the appellant desires to challenge in his first ground of appeal.  However, there is no error shown in this analysis.  This ground of appeal must be rejected.

13. The second ground of appeal suggests a failure to comply with s 424A of the Migration Act 1958 (Cth) which obliges the RRT to give notice of matters that might be used as a reason to affirm the decision of a delegate. The RRT did give the appellant notice of some matters under s 424A. The appellant has given no indication, either in the grounds of appeal or otherwise, of any respect in which the obligation was not met. This ground of appeal is not made out.

14. The third ground of appeal is a variation of the first ground but relies on the suggestion that the RRT has an inquisitorial function that obliges it to pursue matters independently.  The RRT is not obliged to deal with matters not articulated by an applicant and not clearly arising from the materials before the RRT (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). This ground of appeal should also be rejected.

15. None of the grounds of appeal has any apparent substance.  No other error in the decision of the FMCA appears from its terms.  No jurisdictional error has been identified or appears from the decision of the RRT.  The appeal must be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate: 

Dated:        27 November 2007

The Appellant:	The appellant was self-represented
Counsel for the Respondent:	S Moore
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 November 2007
Date of Judgment:	27 November 2007