SZCGD v Minister for Immigration and Multicultural Affairs

[2006] FCA 1037

FEDERAL COURT OF AUSTRALIA

SZCGD v Minister for Immigration & Multicultural Affairs [2006] FCA 1037

SZCGD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD782 OF 2006

EMMETT J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD782 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCGD
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	4 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs in the sum of $2,000.

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	NSD782 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCGD
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

4 AUGUST 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. I have before me an appeal from orders of the Federal Magistrates Court dismissing an application by the appellant for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’). 

2. The appellant is a citizen of India and arrived in Australia on 6 February 2003.  On 10 February 2003, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 21 February 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. On 3 March 2003, the appellant applied to the Tribunal for review of the delegate’s decision. On 3 November 2003, the Tribunal affirmed that delegate’s decision not to grant a protection visa. The appellant was notified of that decision, and the reasons for it were handed down, on 27 November 2003.

3. On 19 December 2003, the appellant commenced a proceeding in the Federal Magistrates Court, seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 5 May 2004, the appellant filed an amended application.  On 12 April 2006, for reasons given ex tempore on that day, Nicholls FM ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $5,000. 

4. By notice of appeal, filed on 26 April 2006, the appellant now appeals to the Federal Court of Australia.  The grounds of appeal in the notice of appeal are not helpful.  The notice of appeal simply asserts that the Federal Magistrate dismissed the case without considering the legal and factual error in the decision of the Tribunal. 

5. The appellant, who appeared in person today without any legal assistance, although he was assisted by an interpreter in the Tamil language, asked that the notice of appeal be treated as raising the ground that the Federal Magistrates Court erred in not upholding the grounds specified in the amended application.  In addition, by written submissions, the appellant raised other matters to which I shall refer shortly.  Despite being given the opportunity to do so, the appellant did not wish to make any further oral submissions beyond his written submission.  That was the approach that he adopted before Nicholls FM. 

   THE TRIBUNAL’S DECISION

6. The reasons of the Tribunal record that the appellant gave oral evidence to the Tribunal on 28 and 29 October 2003.  In that hearing, the appellant stated that he left India because he was targeted by the authorities in Tamil Nadu, where he was born, due to his association with the Muslim League.  He also claimed that he was harassed and threatened by Muslims and Christians and condemned by his family because he wanted to marry a Christian. 

7. In effect, there were two claims made by the appellant that were dealt with by the Tribunal.  The first was that, in India, he and his father were targeted by local authorities in Chennai in Tamil Nadu, because his father was a prominent member of the Muslim League.  The second is that, in India, the appellant had an intimate relationship with a Christian woman, whom he wished to marry.  He claimed that she and members of her family demanded that he convert to Christianity before they would consent to marriage.  He claimed that, when the relationship became publicly known, Muslims and Christians in his community expressed opposition to the relationship and told him to give up the relationship.  He claimed that some individuals threatened to kill him if he went ahead with the marriage. 

8. The appellant claimed that he was involved in political activities with his father and the Muslim League in Chennai.   He claimed that, in 2002, he and his father were detained for three months after they were accused of converting Hindus to Islam.  At the hearing, the appellant also claimed that the local police in Chennai threatened to charge him under federal anti-terrorist legislation.  He also claimed that, as a Tamil, he can only live in Tamil Nadu because in other areas of India he would have language difficulties.  He also claimed that he may be mistaken for a Sri Lankan in other States, and a member of the Liberation Tigers of Tamil Eelam, and, as a Tamil, he would not be accepted by the wider community. 

9. However, the Tribunal was not satisfied that those claims were credible.  The appellant stated at the hearing that some of his written claims were fabricated by friends who helped him write his submissions.  The appellant stated that he discussed his circumstances with two friends, who prepared his written submissions to the Department and the Tribunal, and they fabricated some claims and omitted others.  In those circumstances, the Tribunal found that the appellant had fabricated claims to enhance his application. 

10. The Tribunal did not accept as credible the appellant’s claim that he was detained for three months, either in 2001 or 2002, or that he was subsequently harassed by the authorities because he was implicated with the Muslim League.  The Tribunal did not accept the appellant’s claim that the only place where Tamils can live safely in India is Tamil Nadu.  The Tribunal was satisfied, by information from external sources as well as the appellant’s statements at the hearing, that there are Tamil communities outside Tamil Nadu and that those groups are not subjected to harassment or other harm by the wider community. 

11. The Tribunal also considered the appellant’s claim that there is ongoing violence between Hindus and Muslims in India and that he may be harmed in that dispute.  The Tribunal accepted the claim that Hindu-Muslim violence is an ongoing problem in India.  However, the information from external sources before the Tribunal indicated that both sides, as well as the authorities, continued to commit human rights violations in the conflict.  The Tribunal also noted that Muslims in India are discriminated against by Hindus and that they are an economically disadvantaged group. 

12. Nevertheless, the Tribunal did not accept the appellant’s claim that all Muslims are universally harmed by Hindus or denied protection by the authorities in India.   The Tribunal found that some States of India are more dangerous for Muslims than others and it was satisfied that there are many States, such as those in the south of the country, where Muslims can live safely.  The Tribunal was not satisfied, on the material before it, that Muslims in India suffer discrimination of such nature or extent as to constitute persecution for Convention purposes. 

13. The Tribunal accepted the appellant’s claim that he was harassed and assaulted by the police in Chennai because he approached the Human Rights Commission.  However, the Tribunal found that the appellant did not pursue his complaint and the police carried out their revenge against him when they placed him in detention in May 2002.  The Tribunal concluded that, at the time when the appellant left India, he was no longer a person of interest to the authorities in Chennai or elsewhere in India. 

14. Finally, the Tribunal considered the appellant’s claim that he and his father were detained and harassed over an eight-hour period in January 2002 because of his father’s link to the Muslim League.  The Tribunal was satisfied that the circumstances that led to the harassment during that period no longer exist.  The Tribunal found that the appellant is not involved in activities with his father and that he ceased to be implicated in any of his father’s activities before he left India.  The Tribunal therefore found that the appellant was not at risk of harm by the authorities in Chennai at the time he left the country and that he is not at risk of harm in the reasonably foreseeable future by reason of his father’s activities in Chennai. 

15. The Tribunal found, in any event, that the appellant’s difficulties in India were restricted to his community in Chennai and would continue to be so restricted.   The Tribunal put that observation to the appellant in the course of the hearing.  It said that he could avoid the harm he anticipates in Chennai by living in another city.  The appellant stated that, sooner or later, Muslims in other parts of India would find out that he had converted and they would harm him. 

16. The appellant also said that, as a Tamil, he would have difficulty being accepted in other parts of India.  The Tribunal, however, referred to the fact that Tamils live throughout India without any apparent difficulty and that, by way of example, Bangalore has a Tamil community.  The response by the appellant was that Tamils in Bangalore have problems because of ‘the water issue’.  However, the Tribunal observed that the Federal Government of India and the Supreme Court of India had intervened to force the States of Karanataka and Tamil Nadu to share available water.  The Tribunal was satisfied that the appellant has the skills, knowledge and ability to relocate in India and was satisfied that he could avoid any harm he might expect in Chennai by relocating elsewhere in India. 

17. The second claim by the appellant arose out of his relationship with a Christian woman.  The Tribunal was satisfied on the evidence before it that intimate relationships of such a nature are a source of social and family disapproval in India.  The Tribunal accepted the appellant’s claim that Christians and Muslims do not commonly intermarry in India and that those communities do not approve of such marriage.  The appellant claimed that he would be further targeted if he converted to Christianity to gain the consent for marriage from his partner and her family.  However, the Tribunal found that such matters were mere speculation on the part of the appellant, as he had not made any decision on how to proceed, or indeed if he would proceed, with either the marriage or the conversion.  The Tribunal was therefore, not satisfied that the appellant’s fear of persecution in that regard was well-founded. 

    THE GROUNDS OF REVIEW

18. First, the appellant drew attention to the part of the Tribunal’s reasons where the Tribunal said it was satisfied by the appellant’s statements at the hearing, that there are Tamil communities outside Tamil Nadu and that those groups are not subjected to harassment or other harm by the wider community.  The appellant asserts that he did not make such statements to the Tribunal. 

19. The primary judge considered the Tribunal’s comment in the light of the context in which it appeared.  His Honour considered that the Tribunal was not stating that the appellant made any statement that Tamil communities outside Tamil Nadu are not subjected to harassment.  His Honour considered that a fair reading showed that the Tribunal said that the appellant agreed that there were Tamil communities outside Tamil Nadu.  The Tribunal’s satisfaction that they were not subjected to other harm by the wider community was based on information from external sources.  His Honour concluded, correctly, that the Tribunal was entitled to rely on independent country information and that the weight that it gave to such information was essentially a matter for the Tribunal.  His Honour concluded that the first complaint was not made out. 

20. The second ground in the amended application is a complaint that, on the one hand, the Tribunal accepted the appellant’s claim that Hindu-Muslim violence is an ongoing problem in India but, on the other hand, was not satisfied by the evidence presented or the material before it, that Muslims in India suffer discrimination of such nature or extent as to constitute persecution for a Convention reason.  His Honour concluded that there was nothing in the complaint that constituted jurisdictional error. 

21. Noting that Muslims are subject to discrimination is not inconsistent with not being satisfied, based on independent evidence, that the discrimination is of such nature and extent as to constitute persecution for a Convention reason.  His Honour considered that, to the extent to which that may be characterised as a finding, it was a finding that was clearly open to the Tribunal on the material before it.  His Honour therefore considered that there was no substance in the complaint. 

22. The third matter raised in the amended application was an assertion that the appellant was helping his father in his political activities and was a target with his father.  The assertion was that the Tribunal had incorrectly assessed that the appellant was not at risk of harm because of his father’s activities in Chennai.  The primary judge found that that was a simple merits challenge to the findings made by the Tribunal.  His Honour observed that the Tribunal’s reasons demonstrated that it had considered the appellant’s claims, insofar as they arose from his association with his father’s activities in Chennai.  The Tribunal accepted that the appellant’s father was targeted by local authorities and was a prominent member of the Muslim League and that he had been harassed as a result of activities arising out of that involvement.  However, the Tribunal found that the harassment arising out of the activities in January 2002 had ceased at the time of the appellant’s departure from India. 

23. The fourth ground in the amended application referred to the Tribunal’s acceptance that Christians and Muslims do not commonly intermarry in India and the Tribunal’s failure to accept that the appellant would be targeted, if he were to marry a Christian woman, by his own people.  The appellant’s complaint was that the Tribunal’s reasons were contradictory and unclear.  The primary judge noted that the Tribunal had accepted that such relationships are a source of disapproval in India and that he would be accepted if he converted to Christianity, if he were to marry the woman in question.  The primary judge considered that the finding by the Tribunal, that his fear fell into mere speculation, was open to it on the material before the Tribunal.   His Honour observed that there was nothing contradictory or unclear in the Tribunal’s reasoning. 

24. I have not discerned any error on the part of the Federal Magistrates Court in disposing of those grounds.  Further, the primary judge observed that, since the amended application did not reveal error on the part of the Tribunal, it was appropriate, in circumstances where the appellant was unrepresented, to consider whether, on the material before it, some other jurisdictional error on the part of the Tribunal could be discerned.  His Honour carefully examined the reasons of the Tribunal and raised a number of questions that could possibly have constituted ground of review, but ultimately concluded that there was no jurisdictional error.  No complaint has been made by the appellant concerning the manner in which the primary judge dealt with those questions. 

    THE APPELLANT’S SUBMISSIONS

25. As I have said, the appellant relied on written submissions. The written submissions bear no relationship to the amended application. They begin by asserting that the Tribunal did not follow the proper procedure as required by the Act and cited Muin v The Refugee Review Tribunal [2002] HCA 30. No particulars were given other than an assertion that the Tribunal went through a range of documents listed as Part C, one of which related to India. No attempt was made to identify the document and no evidence was given before the Federal Magistrates Court as to the way in which such a document might have been used by the Tribunal so as to constitute jurisdictional error.

26. There is a further reference in the written submissions to a letter in similar terms to that referred to in Muin.  Once again, it is critical that there was no evidence whatsoever of such a letter before the Federal Magistrates Court, and nothing to attract the principles stated by the High Court in Muin. 

27. The submissions also assert that the Tribunal did not consider the appellant’s application.  The assertion seems to be that the Tribunal did not inquire in to the appellant’s claims.  It is quite clear from the Tribunal’s reasons that it examined the claims in some detail and, as I have said, conducted a hearing over two days. 

28. Next, the written submissions refer to the Tribunal’s ignoring of relevant evidence, and finding in the face of contradicting independent evidence.  That is said to indicate actual bias on the part of the Tribunal.  There is simply no basis for accepting any such an assertion. 

29. Finally there is a reference to the proposition, in Craig v South Australia (1995) 184 CLR 163 at 197, that if an administrative tribunal falls into an error of law that causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant documents, to rely on irrelevant materials or to make, in some circumstances, an erroneous finding or reach a mistaken conclusion there may be jurisdictional error. No one could quarrel with the proposition. However, no attempt has been made, except to the extent that I have indicated, to demonstrate any error.

30. There was no error on the part of the Federal Magistrates Court in its reasons for dismissing the appellant’s application.  I do not consider that there was any error in the reasons of the Tribunal.  It follows that this appeal should be dismissed. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       10 August 2006

The appellant appeared in person.
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	4 August 2006
Date of Judgment:	4 August 2006