SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1223

FEDERAL COURT OF AUSTRALIA

SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1223

SZBUS AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 519 of 2005

ALLSOP J
9 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 519 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUS
FIRST APPELLANT

SZBUT
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

9 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a party to the appeal.

2.The appeal be allowed.

3.The orders of the Federal Magistrates Court made on 21 March 2005 be set aside.

4.The matter be remitted to the Federal Magistrates Court for any further hearing.

5.The first respondent to pay the appellant’s costs (if any).

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	NSD 519 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUS
FIRST APPELLANT

SZBUT
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	ALLSOP J
DATE:	9 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against orders of the Federal Magistrates Court dismissing an application for judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa.

2. I sat as a single Judge of the Court to hear the appeal after a direction of the Chief Justice under s 25(1A) to that effect.

3. The appellants are husband and wife.  They are citizens of India who arrived in this country in October 2002.  The claims of the wife were based upon the primary claims of the husband.

4. The claims of the husband were described by the federal Magistrate in [1] of his reasons, as follows:

   The applicants are husband and wife and citizens of India. The applicants arrived in Australia on 29 October 2002.  On 5 November 2002 the applicants lodged an application for a Protection (Class XA) visa. Only the applicant husband (hereafter "the applicant") made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.

   The applicant´s claims were detailed in an undated statutory declaration by the applicant attached to the protection visa application and in the application for review to the RRT.

   In summary, the applicant claimed a well founded fear of persecution in India on the bases of his religion (Hindu) and political opinion. In particular, he claimed as follows:

   ·after communal riots in Gujarat in early 2002, Muslim fanatics targeted and threatened to kill him because he was an active member of Viswa Hindu Parishad ("VHP"), a Hindu organisation;

   ·also, the police accused him of instigating violence and he feared being prosecuted by them;

   ·he went into hiding with his wife during which there were several attempts on his life; and

   ·in September 2002 there was a renewed outbreak of communal violence and the police and Muslim extremists starting searching for him, and he therefore left for Australia with his wife in October 2002

5. On 2 September 2003 the Tribunal wrote to the appellants advising that it had considered the materials but was unable to make a decision favourable to the appellants on that information alone.  The appellants were invited to attend a hearing and give oral evidence and present arguments.  On 9 September 2003 the appellants advised the Tribunal in writing that they did not wish to attend the hearing.

6. The Tribunal in its reasons discussed the claim, the contents of the husband appellant’s statutory declaration in support of his application and relevant country information.

7. The reasons given by the Tribunal for its lack of satisfaction as to the relevant criterion, that Australia had protection obligations to the appellants were as follows:

   The applicant husband is claiming to fear persecution for reason of religion and political opinion, that is, that as a Hindu and a member of the VHP, he fears harm from local Muslims whom he claims have been threatening him and the authorities whom he claims suspect him to have been involved in extremist activities.

   He claims that there has been attempts made on his life by these local Muslims, and that he and his wife had to hide to escape from them.  He fears he might be killed in Hindu-Muslim conflict anywhere he might settle in India.

   The Tribunal finds, on the basis of independent evidence, that there are indeed significant tensions between Muslims and Hindus in the applicant’s state. However, the Tribunal finds the husband applicant’s claims unconvincing and does not accept them for the following reasons.  The applicant has had some eleven months to procure further evidence, such as his membership of the VHP and that he is being sought by the police, but has failed to do so despite claiming he was trying to do so.  The applicant husband states he was “an active member” of the VHP but provides no details of why he might have been personally targetted [sic] in the manner he claims.  In the light of this absence of evidence, the Tribunal does not believe that attempts have been made on the applicant husband’s life or that Muslim extremists are seeking him.

   The applicant husband claims to have been actively sought by the police since 20 September 2002 but he applied for and received a passport in early September 2002 and departed through immigration control at the airport in November 2002 despite his claim that the authorities were actively seeking him.  The Tribunal finds that were he being sought by the police in the manner he claims, then he would have been found by the authorities when he presented himself at the airport.  The Tribunal therefore finds the applicant husband has fabricated his claims of being sought by the authorities.

   The Tribunal finds that with his tertiary education and language skills of Hindi, English and Gujerati, he could settle and work anywhere in India and the Tribunal finds that relocation, in the particular circumstances of his case, would be reasonable should he wish to avoid the communal riots that have broken out in his state.

   In the light of these findings, the Tribunal cannot be satisfied that there is a real chance the applicant husband might face persecution in the foreseeable future for his religion or for any other Convention reason.  Therefore the Tribunal finds his fear is not well-founded.

   The Tribunal is not satisfied, on the evidence before it, that the applicant husband has a well-founded fear of persecution with the meaning of the Convention.

8. The Federal Magistrate, with the assistance of the submissions to him of Mr Markus, summarised the elements of the otherwise long and discursive amended notice of appeal in [2] of his reasons as follows:

   The applicants filed an amended application in this Court on 28 January 2004. It states six grounds of review, that:

   (a)the solicitors for the respondent had failed to provide the applicants with the "Green Book"; and

   the RRT committed jurisdictional errors by:

   (b)holding against the applicants that they did not attend the hearing, when that was "due to reasons beyond their control", including illness;

   (c)failing to accept that the applicant, as a member of the VHP, had been the target of the local Muslim population and was suspected of having been involved in fundamentalist Hindu activities;

   (d)holding against the applicant his inability to provide documentation to corroborate his membership of the VHP;

   (e)inferring that because the applicant was able to leave India legally that he was not wanted by the authorities;

   (f)finding that it was possible to relocate to another state in India because of the applicant´s knowledge of Hindi, English and Gujarati.

9. The only evidence before the Federal Magistrate was the book of relevant documents.

10. The Federal Magistrate was given little assistance in submissions by the appellants.  The reasons for the rejection of the grounds of application by the Federal Magistrate was the acceptance by him of Mr Markus’ submission in the following terms:

    It is apparent from the grounds above that the applicants seek to agitate the merits of the RRT´s decision, and its assessment of the credibility of the applicant´s claims. This is not open in an application for judicial review: Minister for Immigration v Wu Shiang Lang (1996) 185 CLR 259 at 272; Re Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407 at [67].

    Whilst it is accepted that the applicants are not satisfied with the decision of the RRT, it is not surprising that the RRT reached the decision it did in view of the fact the applicants had been advised that a favourable decision could not be made and they were offered hearings, the first of which was postponed in response to the applicant´s request and the second they declined, and they did not submit any further material. In those circumstances the claims made by the applicants in their application for review to this Court are baffling.

    Briefly addressing the grounds above:

    ·Ground (a) is a complaint by the applicants about a procedural aspect of these (judicial review) proceedings and does not relate to the RRT´s decision. In any event, it is noted that the first directions hearing was not held until 18 March 2004, at which time directions were made for the filing of the bundle of relevant documents.

    ·In relation to ground (b), it is noted that the first hearing was postponed at the applicant´s request, and that the applicants declined to attend the second hearing.

    ·With respect to grounds (c) to (e), these were all matters for the RRT to determine, and the findings made were open on the evidence before it.

    ·In relation to ground (f), it is noted that the RRT actually found that relocation, in the circumstances of the applicants´ case, was reasonable. Once again, the respondent submits that this finding was open to the RRT on the evidence before it.

    There is no error, let alone error amounting to a jurisdictional error, arising from the way in which the RRT dealt with the applicant´s claims.

    Generally, it is accepted by the respondent that "proof" of persecution in the context of an application for protection visa is a matter of some complexity, and that a liberal attitude on the part of the decision-maker is called for, since a person who claims to be a refugee may have difficulties in proving his allegations: Randhawa v MILGEA (1994) 52 FCR 437 at 451.

    On the other hand:

    ·The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the RRT to determine: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292.

    ·The RRT does not have to possess rebutting evidence before holding that a particular assertion is not made out: Heerey J in Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348.

    ·Nor is the RRT required to accept uncritically any and all claims made by an applicant: Beaumont J in Randhawa ibid at 451.

    ·On review of an adverse decision by a delegate of the Minister, such as here, it is for the applicant to satisfy the RRT that all of the statutory elements are made out: Minister for Immigration v Guo (1997) 144 ALR 567 at 596. The criteria for the grant of a protection visa require that the RRT be "satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention": Regulation 866.221.

    There is no error amounting to a jurisdictional error arising from the way in which the RRT dealt with the applicant´s claims.

11. In [5] of his reasons the Federal Magistrate was somewhat critical of certain aspects of the Tribunal’s reasons.  Nevertheless, he found them to be an otherwise adequate explanation as to why it was that the Tribunal was not satisfied of the relevant criteria.

12. The notice of appeal in this Court does not disclose a coherent ground of appeal. For this reason I ordered full written submissions to be filed at an early stage: see my reasons in [2005] FCA 608. Submissions were filed. They first alleged actual bias. No basis was particularised for this assertion. I reject it. An unparticularised assertion of a failure to comply with s 424A of the Migration Act 1958 (Cth) was made. I will return to this. An assertion of the genuineness of their claims was made. This displayed no grounds of error in the Federal Magistrate’s reasons or orders. A claim of reliance on Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 was made. No evidential basis had been led at the hearing for this. Nor was it an issue raised before the Federal Magistrate. Various assertions about the severity of the “privative clause” were made. The approach of the Federal Magistrate was entirely in accordance with Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. Various detailed assertions of factual errors by the Tribunal were made. None, in the light of the failure of the appellants to attend the hearing, can be seen to amount to jurisdictional error.

13. At [52] to [56] of NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 I said:

    If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

    That was the position here. Such an invitation was given.

    The appellant did not take up that invitation.

    The Tribunal remained unsatisfied of the relevant matter to which I have referred.

    In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa.

14. These comments apply here.  The reasons of the Tribunal adequately and apparently rationally explain why it was not satisfied that Australia had protection obligations to the appellants.

15. I raised with Mr Markus at the hearing of the appeal the possible implications of the decision of the High Court in SAAP v The Minister in Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in respect of the operation of s 424A of the Act.

16. The Tribunal in the passages referred to at [7] above expressed four findings as the reasons for its lack of satisfaction. First, the Tribunal identified the length of time to procure further evidence. That was not the prior statement (as the information) being the reason or a part of the reason for the decision.

17. Secondly, the Tribunal identified the lack of details as to why the appellant might have been personally targeted.  The information was not the reason, it was the absence of substantiating detail.

18. Thirdly, the Tribunal relied on the content of the information in the fourth last paragraph at [7] above. Here, a factual conclusion was drawn in part based on the content of the information the appellant provided earlier. The last sentence of this paragraph reveals the importance of the factual conclusions drawn from the information.

19. Fourthly, the Tribunal referred to matters evident from the material provided.  Arguably this was not the information as part of the reason but the apparent attributes of the appellant combined with the Tribunal’s knowledge of India.

20. The third reason identified above was a not unimportant part of the Tribunal’s reasoning. It does reflect the information being a part of the reason. Thus, s424A was engaged. Further, it would appear that s 424A(1)(b) was not complied with in this respect. However, a question arises whether primary relief should be granted. In particular, whether in the light of the previous unwillingness of the appellant to attend the Tribunal hearing in the face of a letter making plain that unless he came, in all likelihood, he would not be granted a visa, any different result would have obtained had a somewhat different letter been sent, identifying with a little more specificity (reflecting the findings in the above mentioned paragraph) why the appellant would not be granted a visa unless he gave further assistance.

21. To the extent that the unparticularised reliance on s 424A may be seen to cover a complaint about the failure to invoke the section in relation to country information, the Full Court decisions in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 answer such an argument.

22. The appeal should be allowed, the orders of the Federal Magistrates Court be set aside and the matter remitted to the Federal Magistrates Court for any further hearing on the above issues.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            9 September 2005

Appellant appeared in person
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2005
Date of Judgment:	9 September 2005