SZCQT v Minister for Immigration and Citizenship

[2008] FCA 822

FEDERAL COURT OF AUSTRALIA

SZCQT v Minister for Immigration and Citizenship [2008] FCA 822

Migration Act1958 (Cth)

WAEE v The Minister of Immigration [2003] FCAFC 184
Randhawa v the Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437
Muin v the Refugee Review Tribunal [2002] HCA 30

SZCQT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2430 OF 2007

REEVES J
16 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2430 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCQT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	16 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $2,300.00.

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 2430 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCQT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the judgment of Federal Magistrate Raphael dated 28 November 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 21 September 2006.  The Tribunal had affirmed a decision of the delegate of the Minister to refuse to grant a protection visa to the appellant.  The appellant alleges, without giving particulars, that the Federal Magistrate and the Tribunal committed a number of errors in reaching their decisions on his claims.  For the reasons I am about to give, I have concluded that none of those alleged errors has substance, and even if any did, none of them amounts to jurisdictional error.  This appeal will, therefore, be dismissed.

   PROCEDURAL HISTORY

2. The appellant is a citizen of India who arrived in Australia on 29 December 2002.  On 30 January 2003, he made an application for a protection visa.  A delegate of the Minister refused that application on 30 May 2003.  On 22 June 2003, the appellant applied to the Tribunal for a review of that decision.  The Tribunal (differently-constituted) affirmed the delegate’s decision on 16 December 2003.  On 5 April 2006, the Federal Magistrates Court quashed that decision, and remitted the matter to the Tribunal to be decided according to law: SZCQT V Minister for Immigration & Anor [2006] FMCA 521. That led to the decision of the Tribunal handed down on 21 September 2006 and the judgment of the Federal Magistrate dated 28 November 2007, which is the subject of this appeal.

3. The appellant claimed to have a well-founded fear of persecution at the hands of the Hindu majority of the area of India where he lived and worked on his family farm.  He claimed that this fear of persecution arose from his Sikh ethnicity, and his membership of the low caste known as ‘Lubana’. 

4. In particular, the appellant relied upon a dispute that occurred in relation to the land his family had leased and farmed from 1956 in Haryana State.  He claimed that in 1996, the Haryana Vikas Party started a movement which was directed to removing farming land, including his family farm, from Sikhs, and transferring it to members of the Hindu Jats class.  He said that in 1998, a group of Hindu Jats attacked local Sikhs on their land and that both his father and himself were injured at that time.  In 2000, he claimed workers from the Indian National Lok Dal and the Bharatiya Janata Party (BJP), started another movement to expel his family and other Sikhs from their land.  This involved various types of harassment.  The police provided no protection.  The appellant claimed that, in fact, they participated in some of this harassment. 

   THE TRIBUNAL DECISION

5. The Tribunal concluded that the appellant’s evidence was variously ‘vague’, ‘evasive’, ‘incoherent’ and ‘internally inconsistent’.  It also noted that the appellant had altered his evidence on occasions and embellished it on others.  The Tribunal therefore concluded he was not a witness of truth and rejected most of his claims. 

6. The Tribunal was satisfied that the appellant was a member of the Lubana caste.  However, the Tribunal was not satisfied that the purported land dispute arose out of a program of persecution against Sikhs, as the appellant claimed, but rather arose out of a business decision by the appellant’s family not to pay the increased rent sought by the landlord.  The Tribunal noted that the appellant eventually resiled from his claim to have been arrested or mistreated by the police during the purported land dispute.  It also noted that the appellant had regularly returned to his family home during the period he claimed to be in hiding from the local Jat people who were ‘seeking to beat’ him.  When pressed on this aspect by the Tribunal, the appellant changed his evidence. 

7. Further, the Tribunal was not satisfied that the Indian authorities had withheld protection from the appellant, referring to country information that the local authorities would generally intervene in land disputes to prevent any further escalation.  For these reasons, the Tribunal rejected the claim of Convention-related persecution arising from the purported land dispute. 

8. Addressing the other integers of the appellant’s claim, the Tribunal noted that the appellant’s brother had continued to reside in their home village after their alleged desertion from the Indian Army.  No convention-related harm appeared to arise in these circumstances.  The Tribunal further noted that the appellant had been unable to make out any claim based on persecution as a Sikh person. 

9. Finally, the Tribunal found that the appellant could reasonably re-locate elsewhere in India, if he were indeed persecuted as he claimed. 

10. In summary, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in India for any of the reasons claimed by him, nor any convention-related reason. 

    THE COURT BELOW

11. In his amended application before the Federal Magistrate, the appellant raised some 14 grounds of appeal. Many of these simply reiterated the claims he had made at the Tribunal hearing. Other grounds argued by the appellant included failure to consider information raised as part of his claims; a breach of section 430(1) of the Migration Act1958 (Cth) (‘the Act’); reliance on incorrect country information and irrationality in reasoning.

12. The Federal Magistrate reviewed each of the 14 grounds of appeal.  His Honour found that many of the grounds were not particularised, and some were unintelligible.  He dismissed many as merely seeking merits review.  In relation to the ground that the Tribunal had not mentioned certain documents in its reasons, being ground two; his Honour concluded that the Tribunal was not required to refer in its decision to every piece of evidence presented to it, referring to WAEE v The Minister of Immigration [2003] FCAFC 184.

13. Further, he rejected the appellant’s contentions that the Tribunal had breached any of the relevant sections of the Act in conducting its review. Ultimately, his Honour was unable to discern any jurisdictional error in the Tribunal’s decision, and the appellant’s application for judicial review was accordingly dismissed.

    THE PRESENT APPEAL

14. The Notice of Appeal filed in this Court on 11 December 2007 appears to have been copied from a pro forma commonly seen in this court.  The first four grounds allege errors in the Federal Magistrate’s decision, which is the proper focus of a Notice of Appeal to this Court.  The remainder seek to revisit the Tribunal’s decision, which is, of course, not a proper focus of an appeal to this Court from a decision of the Federal Magistrates Court.  The grounds may be summarised as follows:

    1.The Federal Magistrate failed to consider the legal and factual errors of the Tribunal - grounds two and three. 

    2.The Federal Magistrate failed to apply the principles in Randhawa v the Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437 (‘Randhawa’), ground 4. 

    3.The Federal Magistrate failed to consider that the Tribunal decision was unjust and failed to consider the gravity of the appellant’s circumstances – ground 5. 

    4.The Tribunal asked some irrelevant questions and failed to take into account the gravity and consequences of the appellant’s claims – ground 6.

    5.The Tribunal denied the appellant procedural fairness in the sense articulated in Muin v The Refugee Review Tribunal [2002] HCA 30 (‘Muin’) - ground 7. 

    6.The Tribunal committed jurisdictional error, failed to carry out its review function, applied the wrong tests and failed to consider the appellant’s claims as a whole – grounds 9 to 11 inclusive. 

15. It should be noted that there is no ground 1 and no ground 8. 

16. At the hearing of the appeal before me, the appellant appeared in person unrepresented.  He was assisted by an interpreter.  At the outset, he did not seek to make any submissions and, in reply, he merely stated that what he said in his evidence to the Tribunal was the truth. 

17. Mr Riley appeared for the Minister.  He submitted the appellant had failed to show any appellable error on the part of the Federal Magistrate.  He submitted that the Tribunal’s findings, that the appellant was not a witness of truth, were findings of fact par excellence, and other findings were factual findings that were open to the Tribunal, so that there had been no error of law, let alone jurisdictional error on the part of the Tribunal.  He submitted further that the Tribunal’s conclusion that the appellant could relocate elsewhere in India if he were in fact persecuted as he claimed was completely in accordance with Randhawa.

18. He also submitted that the decision in Muin dealt with agreed facts, and discussed the common law principles in relation to procedural fairness, and was therefore not relevant because here there are no agreed facts, and none particularised, and section 422B of the Act defines procedural fairness exclusively for the purpose of proceedings under the Act. Finally, Mr Riley submitted that most of the other grounds were either not particularised, meaningless or misconceived.

19. In my view, Mr Riley is correct in all those submissions, in particular, the Tribunal’s conclusions that the appellant was not a witness of truth, and its other conclusions of fact about the appellant’s claims, including the conclusion that he could reasonably relocate elsewhere in India if he were persecuted as he claimed, are all matters squarely within the fact‑finding jurisdiction of the Tribunal and, as such, cannot constitute jurisdictional error. 

20. Apart from the grounds raised in the Randhawa and Muin cases, all of the remaining grounds of appeal seek to challenge the Tribunal’s conclusions of fact, in other words, they seek a merits review.  It hardly needs to be said that this Court has no power to interfere with those findings of fact, nor to conduct any merits review of the Tribunal’s decision.  As to the Randhawa and Muin cases, I consider Mr Riley is also correct in his submissions.  The Tribunal complied with the ruling in Randhawa and other cases to similar effect on the relocation principle, and also the ruling in Muin is not relevant to the circumstances of this case for the reasons he gave.  Furthermore, neither of these matters was raised before the Federal Magistrate. 

21. In my view, therefore, the conclusion of the Federal Magistrate that there was no jurisdictional error present in the Tribunal decision was entirely correct.  I, therefore, order that this appeal be dismissed, and I order that the appellant pay the first respondent’s costs fixed in the sum of $2300.00. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice REEVES.

Associate:

Dated:        2 June 2008

Counsel for the Appellant:	Self Represented
Counsel for the First Respondent:	Mr Riley
Solicitor for the First Respondent:	Sparke Helmore Lawyers

Date of Hearing:	16 May 2008
Date of Judgment:	16 May 2008