SZCEM v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 536

FEDERAL COURT OF AUSTRALIA

SZCEM v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 536

MIGRATION – judicial review – Indian national – Tamil ethnicity – Muslim religious affiliation – alleged fear of persecution by Hindu elements in local village – on account of Muslim religion – on account of public activities related to Muslim affiliation – claims rejected by Refugee Review Tribunal – no jurisdictional error disclosed – application for judicial review by Federal Magistrates Court dismissed – appeal dismissed.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited

SZCEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 248 OF 2006

FRENCH J
10 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 248 OF 2006

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

SZCEM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondents’ costs of the appeal.

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 248 OF 2006

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

SZCEM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	FRENCH J
DATE:	10 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant, who is of Indian nationality, appeals against a decision of the Federal Magistrates Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The decision of the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) to refuse the appellant the grant of a protection visa.  After hearing from the appellant I found no reviewable error in either the decision of the Tribunal or that of the Federal Magistrates Court.  The appeal was therefore dismissed with costs.  I publish my reasons for so ordering.

   Factual and Procedural Background

2. The appellant is an Indian citizen of Tamil ethnicity.  He is a Muslim.  He came to Australia on 24 November 2002 on a passport which was issued on 17 November 2002.  His entry was under a business visa which had been issued on 8 November 2002.

3. On 23 December 2002 the appellant lodged an application for a protection visa.  The reasons, stated in the application form, for claiming a protection visa were briefly put.  He claimed to be in fear of harm or mistreatment by a Hindu group known as Veswa Hindu Paresad (VHP).  He claimed that he was at risk of harm because of his Muslim religion and his involvement in activities, including the preaching of that religion to both Muslim and non-Muslim people.  He said he would submit a more detailed description of his case as soon as possible. 

4. The appellant submitted a handwritten statement through his migration agent on 28 January 2003.  He claimed to have become an important member, in 1996, of a Muslim organisation known as Tamil Nadu Muslim Munatra Kalagam (TMMK).  He said that at the end of 1997 some Muslim people in his village asked him about the possibility of constructing a mosque there.  They were prepared to donate 300,000 rupees to that end.  The appellant said that he and other members of the TMMK began collecting money from the villagers as well as from people in a neighbouring village.  Hindu people in the area came to know that he was engaged in this activity and threatened his life.  Those who made these threats were associated with three Hindu organisations, the VHP, the BJP (Barahaja Janaja Party) and the RSS (Rastria Swam Sebaci).   The appellant subsequently became the acting secretary of the TMMK.

5. In mid 2000 people from his village asked him about the mosque and he told them that he had a problem with these organisations and other ‘pro-Hindu’ people in the village.  He wanted TMMK members to support him with the construction of the mosque.  In November 2001 he wrote to other TMMK branch leaders seeking support for the organisation of a rally to publicise the problems facing Muslim people.  These included, he alleged, discrimination in education and employment. However some prominent Hindu leaders in his village came to his house and warned him not to carry on with the proposed meeting which would involve a discussion about the construction of a mosque.  He claimed that they went as far as to threaten that he would be killed if he did so. 

6. The appellant said that he was terrified by the threats he had received but was not prepared to give up.  There was no help to be had from the Indian government.  He also claimed, albeit without any elaboration or explanation, that he was arrested by police along with some TMMK members on 30 November 2001 and was released on 11 December 2001 without any charge being made.  He claimed the police always favoured the ruling party.  The police in Tamil Nadu, as well as in India, are pro-Hindu and anti-Muslim. 

7. The appellant claimed that in September 2002 the Chief Minister of Tamil Nadu had proposed a law under which people could not change their religion.  He arranged a public meeting in his village to protest against this.  However pro-Hindu elements passed a message to the police who tried to arrest him.  He claimed to have escaped from the police and gone to Bombay.  Subsequently his parents told him that police and Hindu extremists were looking for him.  His life was at risk.  The appellant said he stayed two months in Bombay then arranged a visa with a friend who is a travel agent.  He claimed that he could not return to India because his life was in danger from the three Hindu organisations he had named as well as from the police.

8. The appellant’s application for a protection visa was refused by a delegate of the Minister on 6 March 2003.  He applied on 27 March 2003 for review of that decision by the Tribunal. 

9. On 15 September 2003 he was invited to a hearing by the Tribunal which was scheduled for 23 October 2003. On 17 September 2003 he was sent a letter by the Tribunal under s 424 of the Migration Act 1958 (Cth) (the Act) requesting details of his claims and, in particular, documentary corroboration of aspects of them. On 10 October 2003 his migration agent sent to the Tribunal a response to the hearing invitation, a statement from the applicant and copies of his passport. The letter set out some elaboration of factual issues raised in the request of 17 September 2003.

10. The Tribunal heard the application on 23 October 2003 and on that date decided to affirm the decision not to grant a protection visa.  The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  His application for judicial review was refused by Driver FM on 31 January 2006.

11. On 15 February 2006 the appellant filed a notice of appeal against the decision of Driver FM. 

    The Reasons for Decision of the Tribunal

12. The Tribunal gave comprehensive reasons in which it set out the appellant’s claims.  It referred to the notice issued to him on 17 September 2003 and his response given to that notice.  It then canvassed the appellant’s evidence at the oral hearing and independent country information to which it referred relating to the thoroughness of checks at India’s airports.

13. In its findings and reasons the Tribunal did not accept that the appellant had a genuine or well-founded fear of persecution by reason of his religion or his political opinion or for any other Convention reason.  It was satisfied that he had fabricated his claims in order to extend his stay in Australia.  The reasons for these conclusions were stated in summary thus (at [41]):

    ‘... because he has failed to provide support, documentary or otherwise, for his claims, his claims are vague, his claims changed significantly at the hearing, he raised significant claims very late in the process and had no compelling reason to explain that delay, his claims are inconsistent with available independent information, and his behaviour is inconsistent with a genuine fear of persecution.’

14. The Tribunal observed that the appellant had not provided any evidence, documentary or otherwise, to support his claims despite being specifically required to do so on multiple occasions. It did not accept his explanation for failing to use any of three visas which he had obtained prior to departing India which would have allowed him to enter Malaysia, Singapore or Thailand. It did not accept that a person genuinely in fear of persecution would have failed to make use of three lawful avenues to escape such persecution. The Tribunal did not accept that he was a member of TMMK or the secretary of his local branch. His attempt to respond to the s 424 notice requesting details of his role in TMMK were ‘unsatisfactory’ and ‘not what the Tribunal would expect from a long time member and senior office holder’.

15. The Tribunal did not accept the appellant’s claim that he had been arrested in November 2001 or that the police had tried to arrest him again in September 2002 or that police in a different state (when he was in Bombay) wanted to arrest him.  He had provided no corroboration of those claims and in his protection visa application form had failed to mention those episodes of investigation and arrest when specifically asked to give details of such matters.  The Tribunal found that his explanation for his arrest had varied significantly in the hearing from that claimed in his written submissions, including his response to the letter of 17 September 2003.  His explanation of how he effected a release after 11 days detention was ‘particularly unconvincing’ especially as he claimed that police continued to search for him after his release and right up to his departure from India.  For this and a number of other reasons the Tribunal rejected the appellant’s claims.

    The Reasons of the Federal Magistrates Court

16. The amended application for judicial review considered by the Federal Magistrates Court relied upon the following grounds as set out in the reasons for judgment (at [6]):

    ‘a)      failure of the RRT to take into account a relevant consideration;

    b)failure of the RRT to take into account the [appellant’s] membership of “a particular social group, Muslim minority in India and political opinion in India”;

    c)failure of the RRT to base its decision on a rational or logical foundation.’

17. The learned Federal Magistrate observed that there were no particulars provided in support of the first ground and from the detail provided in the Tribunal’s decision it was clear that the appellant’s claims had been fully considered.  Absent any further particularity there was no jurisdictional error to be shown on the first ground.

18. The second ground was also dismissed as ‘without foundation’.  The appellant’s claim was never expressed in terms of membership of a particular social group.  It did refer to his membership of the TMMK and the political and religious activities which he had undertaken in connection with that association.  Those matters were ‘fully explored by the RRT and their centrality to the applicant’s claim to refugee status accepted’.  The learned Federal Magistrate correctly referred to unavailability of judicial review on the factual merits of the case including matters of weight to be given to items of evidence and the credibility to be attached to witnesses. 

19. With regard to the third ground, the learned Federal Magistrate referred to the observation by Gleeson CJ in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] where Gleeson CJ said:

    ‘... to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it.  If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.’

    The learned Federal Magistrate said, in relation to the third ground, that no such precision had been provided.

20. The learned Federal Magistrate found no other possible assertion of jurisdictional error apparent from his own reading of the Tribunal decision and the book of relevant documents.  He found that the Tribunal decision was free from jurisdictional error.  He dismissed the judicial review application with costs.

    The Grounds of Appeal

21. The grounds of appeal stated, in the notice of appeal filed on 15 February 2006, are:

    ‘2.       I was refused natural justice.

    3.        The Tribunal identified the wrong issue.

    4.        The Tribunal made jurisdictional error.’

    The Appellant’s Contentions

22. The appellant filed an outline of submissions.  He set out the factual and procedural background and a summary of the claims he had made before the Tribunal and of the Tribunal’s finding.  He then submitted that there were substantive errors in the Tribunal’s decision.  The errors he identified, which seemed to have little or no relation to the grounds of appeal as set out in his notice of appeal, were as follows:

    1.The Tribunal did not put any weight on the responses which he gave on 10 October 2003 to the letter of 17 September 2003 requesting the provision of information pursuant to s 424 of the Act.

    2.He referred to the Tribunal finding that he had fabricated claims in order to extend his stay in Australia and that the Tribunal had based its finding on his failure to provide supporting documentary evidence. He submitted that he had provided all necessary supporting documents to the Tribunal. He said he promptly responded to the s 424 notice. He submitted that the Tribunal had made a wrong assumption about his documentary evidence.

    3.The Tribunal did not accept that the appellant was a member of the TMMK or a secretary of his local TMMK branch. It also commented that in his response to the s 424 notice seeking details of his role in that organisation the information he provided was ‘extremely vague and unsatisfactory’. The appellant submitted, in effect, that it was not open to the Tribunal to make such a comment without any investigation.

    4.The Tribunal member had referred to not being satisfied of various things.  The appellant asserted that the Tribunal had already made up its mind before the hearing that it would give a decision adverse to the appellant.  He submitted that the Tribunal had acted in bad faith.  He relied upon the Tribunal’s use of the verbal formula ‘I am not satisfied’ without any investigation and without giving any weight to his evidence.

23. He then submitted that his persecution was genuine and continuing and that he would be killed by Hindu fundamentalists on account of his affiliation with Muslim political organisations and because of his attempts to build a mosque in his local area.

24. At the hearing of the appeal the appellant added very little to his written submissions apart from contentions about the facts of the case.   

    Conclusion

25. There is no merit in the appellant’s appeal.  No jurisdictional error is disclosed on the part of the Tribunal nor any error in the reasoning of the learned Federal Magistrate.  The assertion of bias and bad faith is not supported by any evidence.  The other matters raised go to the factual merits of the case. The appeal will be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:             10 May 2006

The appellant appeared in person.
Counsel for the Respondent:	Ms Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 May 2006
Date of Judgment:	10 May 2006