SZAKV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1160

FEDERAL COURT OF AUSTRALIA

SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1160

MIGRATION LAW – no point of principle

Migration Act 1958 (Cth)

SZAKV AND SZAKW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 562 OF 2004

MOORE J
9 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 562 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAKV AND SZAKW APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	9 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 562 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAKV AND SZAKW APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	9 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 31 March 2004, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellants a protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act").

2. The appellants are husband and wife, both of Indian nationality, who lived in Andhara Pradesh, India, before their arrival in Australia.  On 21 March 2002, the appellants arrived in Australia on valid visas.  On 5 April 2002, they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department").  On 4 June 2002, a delegate of the Minister refused to grant the appellants a protection visa.  On 25 June 2002, the appellants applied to the Tribunal for a review of that decision.  On 20 March 2003, the Tribunal affirmed the decision of the Minister not to grant the appellants a protection visa.  The appellants sought review of that decision in the Federal Magistrates Court.  On 31 March 2004, a Federal Magistrate dismissed the appellants’ application.  The appellant wife made no independent claims under the Convention.  For convenience I refer to the appellant husband as the appellant.

   Background

3. The appellant made the following claims in his application to the Department.  The appellant and his wife are Muslim.  The appellant came to Australia because it was no longer safe for him to live in India, as he was a Muslim.  He had lived his whole life in India but it was not until the 1992 Hindu-Muslim riots when many Muslims were killed, that the situation became very bad.  During those riots the appellant's home was looted but he was not harmed as he was not there.   The appellant complained at his local police station but this was of no help.  The looters found out and made his life more difficult, on one occasion beating him very severely. 

4. After the appellant married in 1998 they (Hindus) came to his house regularly and threatened his wife asking for money if they wanted to live in peace.  The appellant had to give them money to ensure his safety.  His financial position became very bad so, as soon as he got a chance, he left India.

5. As it was not possible for him to live there in peace, the appellant came to Australia. The appellant fears for his safety should he return to India.  The police will not protect the appellant because they are also on the side of the Hindus.  He fears that, should he go back, the people who were extorting money from him would not spare him as he has hurt their pride and ego.  He claimed these Hindu activists would surely harm him if he were to return because he escaped them and came to Australia.  They would take revenge to keep the other Muslims they victimise fearful.

   The Tribunal’s Findings and Reasons

6. The appellants elected not to attend the hearing.  Accordingly, the Tribunal made its decision by reviewing the papers.  The Tribunal accepted the appellant's claims about the gravity of the 1992-1993 riots in parts of India when Hindu fundamentalists demolished the Babri Mosque in Ayodhya in the State of Uttapradesh.  The Tribunal also accepted that during that period the appellant’s house was looted and that he was unsuccessful in getting the assistance of the police at that time.  However, the Tribunal noted that no evidence was provided that following the beating or the alleged extortion the appellant had either sought or been denied assistance from the authorities.  Nor was he able to identify his attackers to the police despite suggesting they may have been the same people.

7. The Tribunal considered country reports such as the US State Department’s 2000 Annual Report on International Religious Freedom: India CIS Document CX44717 which said the State Government in Andhara Pradesh was made up of a secular party, the Telugu Desam Party, which had a history of supporting religious minorities and made efforts to attenuate religious minority fears in the country.  The Tribunal also noted the report drew a distinction between the governments of various states, such as Gujarat where various incidents of communal violence were recorded, and Andhara Pradesh, where the appellants lived.  The Tribunal was not satisfied there was a systematic or targeted attack on the appellant, nor compelling evidence the authorities were unable or unwilling to give him protection at that time.  It said:

   Rather it would appear that the first instance occurred in the context of a major riot, and the second instance could best be described as an isolated case of criminal extortion.

   The Tribunal was not satisfied that the appellants faced a real chance of persecution, nor was it satisfied that they had a well founded fear of persecution should they return to India. 

   The Federal Magistrate’s Reasons

8. The appellant was legally represented before the Federal Magistrate.  An affidavit was filed explaining that his previous advisor had told him not to attend the Tribunal hearing.  The Federal Magistrate set out in his reasons for judgment the appellant's claims in his original application, noting that this was the evidence on which the Tribunal had to make its determination.  After summarising and repeating passages from the Tribunal's findings and reasons, his Honour detailed the appellant's grounds of review and dealt with each of them.

9. The appellant's first submission was that there was no evidence that the looting was not due to racial hatred and that the Tribunal's approach to the riots involved "a de facto acceptance" that the looting was racially motivated.  The Federal Magistrate concluded it was open to the Tribunal not to draw the inference argued for by the appellant having regard to the limited evidence before the Tribunal. 

10. The appellant's second submission was that the Tribunal's conclusion that state protection was available was unreasonable in a Wednesbury sense.  Further, if there was no evidence on which a Tribunal could come to the conclusion it did, then the Tribunal had failed to undertake the task before it, whether that failure was described as Wednesbury unreasonableness or otherwise.  The Federal Magistrate thought that the way the Tribunal expressed itself was unfortunate (the Tribunal had said that the Convention was not directed against the failure of the country to protect its citizens against random criminal behaviour, or failure to act on insufficient evidence).  But his Honour considered that the conclusions of the Tribunal were open to it. 

11. The appellant's third submission was that there was no evidence that there was no causal connection between the events and the race of the appellant.  His Honour noted the Tribunal had accepted that the appellant was a Muslim and that certain activities may have been directed against him by non Muslims, but that it did not follow that the alleged persecutory events were directed at him because he was a Muslim.  While noting that this inference would have been open to the Tribunal, his Honour indicated a contrary inference was equally available.  His Honour noted that it was for the appellant to make out his case and the Tribunal was not a contradictor.

12. The fourth submission of the appellant was that the Tribunal failed to take into account a relevant consideration which was critical to the making of the decision.   His Honour noted that the Tribunal seemed to have narrowed down the number of incidents raised by the appellant to two when a generous reading of the appellant’s statement could lead to the inference that there were five incidents: the appellant’s house being looted, the appellant later being bashed by the looters, the appellant being extorted at the time of his marriage, the appellant having regular threats made after his marriage and the possibility that the extortion continued after his marriage.  His Honour said at [13]:

    That is a reading [that there were four incidents] which can be made from the statements of the applicant but it is for the Tribunal to decide whether or not it accepts that reading and draws the inferences which [the appellants' solicitor] says it must draw.  I do not believe that these inferences are necessarily drawn from the statements, they being only statements not made under oath and not supported by any other evidence.

13. The Federal Magistrate noted the Tribunal provided the appellant with an opportunity to appear before it, where he and his wife could have been asked the questions concerning the matters raised before the Court.  His Honour said at [15]:

    I think it is wrong to criticise a tribunal which provides an applicant with an opportunity to appear before it and respond to the type of questions which, by inference, counsel is now suggesting should have been asked, when the Tribunal was not given that opportunity because the applicant, for whatever reason, of his own volition decide not to make an appearance.  I cannot see how a party can argue in the absence of his attendance at a hearing that the Tribunal made a jurisdictional error in coming to conclusions which another reading or another inference from the same set of facts could have produced.

14. His Honour acknowledged there would be cases where a Tribunal’s decision made in the absence of an applicant could be said to have been made in error, and in jurisdictional error, for example where a decision is based on facts which do not exist.  However, his Honour concluded that was not the case in the present matter.  His Honour found the appellants made certain submissions open to different readings and the Tribunal did not fall into error by drawing its own inferences from those facts.

15. The Federal Magistrate dismissed the application.

    Ground of Appeal and its Disposition

16. The grounds of appeal are as follows:

    (a)His Honour erred in holding that in the case of looting there is no firm proof of a causal connection with the Convention.

    (b) His Honour erred in holding that the Tribunal was not unreasonable to a degree of Wednesbury Unreasonableness when it held that state protection was available.

    Particulars
    The applicant stated in his initial application – Question 44 – "The police will not protect us.  Because they are also on the side of these Hindus, and as I have mentioned earlier I have had a personal experience about it when I went to complain to them."

    (c) His Honour erred in holding that it was open to the Tribunal to decide that it was not necessary that the alleged persecutory events were directed at him because he was a Muslim.

    (d) His Honour erred in holding that it was open to the Tribunal to hold that there were only two incidents, whereas the Applicant says there were four incidents and His Honour Himself added one more possible incident to that to make it five incidents.

    (e) His Honour erred in holding in relation to the applicant's case "I can not see how a party can argue in the absence of his attendance at a hearing that the Tribunal made a jurisdictional error in coming to conclusions which another reading or another inference from the same set of facts could have produced."

    Particulars
    The Applicant's argument is that the Tribunal's acceptance of certain facts without disputing them necessarily makes certain conclusions inevitable and the Tribunal can not draw extremely unreasonable conclusions.  This is not affected by whether the applicant attended the hearing or not.
    (original emphasis)

17. The case presented in the appeal was, in substance and not surprisingly, the case presented to the Federal Magistrate.  With one qualification, the approach of the Federal Magistrate was unexceptionable.  The material before the Tribunal was scant.  While inferences favourable to the appellant could have been drawn from the material (for example, his home had been looted by Hindu fundamentalists and that he had been targeted because he was a Muslim), the Tribunal was not bound to draw those inferences and did not fall into jurisdictional error by not doing so.

18. The qualification is this.  The Federal Magistrate dealt with the fourth ground raised on the basis that it was a matter for the Tribunal to assess the written material and form a view about what it disclosed.  However, what it disclosed was not, in my opinion, a matter for inference as his Honour suggested.  In the completed application form (for a protection visa), in answer to question 40 "Why did you leave that country?", the appellant said that the mob which had looted his home came to know that he had complained to the police.  He then said "they even beat me up once very badly".  It is not matter of inference whether, as part of the appellant's claim, he said he had been beaten.  There was primary evidence (in the sense of words written by the appellant on the form) that this was part of the appellant's account of his experiences in India.  The Tribunal was obliged to deal with the appellant's claims as they had been articulated.

19. In its reasons for decision, the Tribunal does not refer to this aspect of the appellant's claims either in its summary of them or, at least directly and in detail, in its later analysis.  That is, it did not refer to the appellant's claim that he had been very badly beaten after he had reported the looting to the police.  However the Tribunal did say:

    The applicant claimed that on a second occasion following his marriage, unidentified Hindus demanded money.  He provided no evidence that following the earlier alleged attack, or the alleged extortion, he either sought or was denied assistance from the authorities, or that he was able to identify his attackers to the police although he suggests that they may have been the same people.
    The Tribunal is not satisfied on the material before it that there is a causal connection between any of these events, or that they occurred for any of the Convention reasons, or that he lacked state protection in relation to those incidents.
    (emphasis added)

    The reference to "the earlier alleged attack" could only have been a reference to the appellant's claim that he was beaten after he had reported the looting to the police.  The Tribunal appears to have concluded that the material did not leave it affirmatively satisfied that if there had been an attack (it used the adjective "alleged"), it was because of the appellant's religion (or any other Convention reason).  Again, the Tribunal could have reached the contrary conclusion.  But, it was not bound to do so nor did it, in substance, ignore or overlook an essential element of the appellant's claims.  It did not fall into jurisdictional error.

20. The appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             9 September 2004

Solicitor for the applicant:	Silva Solicitors
Counsel for the respondent:	J D Smith
Solicitor for the respondent:	Clayton Utz
Date of Hearing:	31 August 2004
Date of Judgment:	9 September 2004