SZCOX v Minister for Immigration and Multicultural Affairs

[2006] FCA 1053

FEDERAL COURT OF AUSTRALIA

SZCOX v Minister for Immigration and Multicultural Affairs [2006] FCA 1053

SZCOX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 713 OF 2006

BRANSON J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 713 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCOX
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellants pay the first respondent’s costs fixed in the sum of $3500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 713 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCOX
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE:	4 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal handed down on 7 January 2004.  The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant protection visas to the appellants.

2. It is unclear whether both of the appellants or only the male appellant made substantive claims to be entitled to a protection visa.  Mr Jayawardena, solicitor, who appeared for the appellants, expressed the view that only the male appellant had made a substantive claim and that his wife relied on her status as a member of his family.  I note, however, that before the Tribunal each of the appellants claimed to be a refugee in his or her own right and the Tribunal proceeded on that basis.  I propose to do the same.

3. The appellants are citizens of India who originally lived in Ahmedgarth in Punjab.  The male appellant claimed before the Tribunal to have a well-founded fear of persecution due to his political affiliation with the Akali Dal Party.  The female appellant claimed to fear assault, including sexual assault, by police because of her husband’s political affiliation and her vulnerability by reason of his possible absence from home.

4. The male appellant is a medical practitioner.  He claimed to be the general secretary of his local branch of the Akali Dal Party and to have been responsible for the 2002 campaign of an Akali Dal candidate for election to the Legislative Assembly.  He claimed a history of arrest and torture by the authorities in India.

5. The Tribunal rejected the appellants’ claims to be entitled to protection visas on two distinct bases.  The first basis was that it did not accept that the appellants have a well-founded fear of persecution in India for a Convention reason.  The Tribunal found that the male appellant had exaggerated his claims.  It was not satisfied that he was wanted by the police or had been subject to state persecution.  The Tribunal accepted that the female appellant had been mistreated and insulted by drunken police officers but was not satisfied that the harm suffered by her was serious harm amounting to persecution for a Convention reason or that the behaviour of the police was for a Convention reason.  The second basis upon which the Tribunal rejected the appellants’ claims was that it was satisfied that it would be reasonable for them to return to India and relocate within that country if for any reason whatsoever they did not wish to return to Ahmedgarth.

6. The appellants’ application to the Federal Magistrates Court for judicial review of the decision of the Tribunal was dismissed with costs.  They have appealed from the judgment of the Federal Magistrates Court on three grounds.

7. In summary, they allege:

   (1)that the decision of the Tribunal is affected by Wednesbury unreasonableness;

   (2)that the Tribunal misconceived the nature of the female appellant’s claims; and

   (3)that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).

8. The appellants have not challenged the findings of the Tribunal that it would be reasonable for them to relocate to another part of Punjab, or elsewhere in India, and that there is not a real chance that they would experience harm amounting to persecution for a Convention reason if they did so relocate.  For this reason their appeal must necessarily fail; the Tribunal’s findings on the issue of internal relocation provide an independent basis for the rejection of the appellants’ claims to be entitled to protection visas.

9. However, it is appropriate to record that each of the three grounds of appeal upon which the appellants relied is, in any event, without merit. 

10. The claim brought in reliance on the principle recognised by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-230 is not easy to understand. It appears to be a challenge to the decision of the Tribunal to reject certain evidence given by the male appellant. I am not satisfied that any unreasonableness, let alone unreasonableness within the Wednesbury principle, attends the Tribunal’s findings of fact in this case.  This ground of appeal is rejected. 

11. Nor is there any reason, in my view, to think that the Tribunal misconceived the female appellant’s claims which were limited to a particular incident.  The Tribunal noted that the female appellant described the incident in slightly different terms on two occasions and that when asked she did not nominate the incident, or a fear arising from the incident, as her reason for coming to Australia.  She told the Tribunal that she and her husband came to Australia because they have relatives here and to see her brother-in-law. 

12. As stated above, the Tribunal accepted that on one occasion the female appellant had been mistreated and insulted by drunken police officers.  However, it was not satisfied that the incident was motivated by a Convention reason or that the harm was sufficiently serious to constitute persecution.  It was not satisfied that the female appellant had a well-founded fear of persecution for a Convention reason arising from the incident or her concerns about the claimed harassment of the male appellant.

13. I see no error in the approach adopted by the Tribunal to the female appellant’s claims.  The second ground of appeal therefore fails.

14. The appellants finally claimed that s 424A of the Act placed an obligation on the Tribunal to provide them with particulars of certain information and that the Tribunal had not done so. The information on which this ground of appeal is dependent is identified in the appellants’ written submissions as ‘information’ concerning the male appellant as follows:

    ‘(a)“as a Doctor with high political profile who had been in charge of January 2002 legislative elections

    (b)“he has greatly exaggerated his claims in order to enhance his claims for refugee”

    (c)“there was no mention of the Applicant in the many press cuttings he has submitted”’

15. Paragraphs (b) and (c) above do not identify ‘information’ within the meaning of s 424A. Paragraph (b) refers to a conclusion reached by the Tribunal. Paragraph (c) refers to conclusions drawn from press clippings provided to the Tribunal by the male appellant. It was acknowledged by the male appellant that his photograph does not appear in the press clippings and that there is no mention of him in them. The Tribunal’s analysis of the material given to it by the male appellant is not ‘information’ within the meaning of the section.

16. As to paragraph (a) the male appellant told the Tribunal that he was a doctor and the Tribunal accepted that claim.  The Tribunal in its written reasons for decision referred accurately to the claims made by the male appellant, and remade by him to the Tribunal, that he was general secretary of the local branch of his party and that he was in charge of a candidate’s campaign for the Legislative Assembly in January 2002.  It was no part of the Tribunal’s reason for affirming the decision under review that the male appellant had a high political profile and had been in charge of January 2002 legislative elections – or that he had so claimed in another forum.  For this reason paragraph (a) fails to identify any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision which was under review. 

17. No error has been shown to affect the judgment of the Federal Magistrates Court.  The appeal will therefore be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:         14 August 2006

Advocate for the Appellant:	C Jayawardena
Solicitor for the Appellant:	C Jayawardena
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 August 2006
Date of Judgment:	4 August 2006