SZCZG v Minister for Immigration and Multicultural Affairs

[2006] FCA 1677

FEDERAL COURT OF AUSTRALIA

SZCZG v Minister for Immigration and Multicultural Affairs & Anor
[2006] FCA 1677

Migration Act 1958 (Cth)

SZCZG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR

NSD 1071 OF 2006

DOWNES J
22 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1071 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCZG
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	22 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal dismissed with costs.

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 1071 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCZG
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	22 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. The appellant is an Indian Tamil who is a Muslim.  He claimed a protection visa under the Refugees Convention on the ground that he had a well‑founded fear of persecution because of his religion and political opinions.  His claim was unsuccessful before both the delegate of the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal.  An application for review by the Federal Magistrates Court was dismissed.  The appellant has appealed to this Court. 

2. The Notice of Appeal purports to contain five grounds, but they do not disclose any specific appeal points.  The affidavit accompanying the Notice of Appeal does not add anything.  The appellant has now filed written submissions in support of the appeal.  The written submissions raise the following matters:

   (1)Failure to comply with section 424A of the Migration Act 1958 (Cth);

   (2)Failure to comply with sections 424, 430, 439 and 440 of the Act;

   (3)Failure to uphold the two grounds for his claim;

   (4)Failure to observe proper procedures and in particular to comply with section 66 of the Act;

   (5)Denial of natural justice;

   (6)Ignoring relevant evidence and making its finding in the face of independent evidence contradicting the finding, which indicates actual bias and denial of procedural fairness; failure properly to take an India country report into account.

3. The claim presented to the Refugee Review Tribunal by the appellant was that he feared persecution because of his Muslim religion.  He particularly claimed to fear persecution from Hindu fundamentalists and especially a group known as the RSS which supported the ruling party, the BJP.  He also claimed to fear persecution by the BJP Government, the police and others.  The appellant also claimed to be a member and official of the Congress Party, and to fear persecution from the same quarters for this reason. 

4. The Tribunal accepted that the appellant was a Muslim and, giving him the benefit of the doubt, that he was possibly a supporter or even a member of the Congress Party.  However, the Tribunal also found that the appellant had not claimed to have suffered any particular difficulty because of his religion.  It accepted that there was a well‑established Muslim community of some 120 million people in India, where the Constitution protected religious freedom.  It accepted that the government of India took steps to address any communal violence.  The Tribunal was satisfied that there was not a real chance that the appellant would experience persecution because of his religion. 

5. The appellant did give evidence of having been abducted and tied up by people he claims were from the RSS.  Giving the appellant the benefit of the doubt, the Tribunal accepted that this incident took place, but it was not satisfied that the incident was associated with his membership of the Congress party or because he was a Muslim or for any other Convention reason.  The Tribunal considered it might have been a simple criminal robbery.  This is consistent with the fact that the appellant says that at the time he was abducted he was distributing money to the poor, thereby demonstrating that he had cash on his person. 

6. The Tribunal was not satisfied that the appellant had any community profile, whether political, religious or anything else.  For all these reasons, the Tribunal determined that the appellant’s claim should fail. 

7. The Tribunal also decided the claim adversely to the appellant on the independent basis that it would be reasonable for him to relocate in safety to Madras or somewhere else in India.

8. Applicants for protection visas have two opportunities to put forward their cases on their merits.  The first is to the Minister, usually through a delegate.  The second is on a review by the Refugee Review Tribunal.  Neither the delegate nor the Tribunal is a court.  The role of the Tribunal is to reconsider every aspect of the case both as to the facts and the law.  The decision of the delegate has no prima facie or other validity which must be taken into account by the Tribunal.  Having been given two opportunities to present a case fully, the Parliament of Australia has determined that any further reconsideration by the courts should be confined to error of law amounting to jurisdictional error.  In the present case the Tribunal has made findings of fact, findings on the merits, which are fatal to the appellant’s claim, and it is really for that reason that the appellant’s appeal must fail. 

9. The appellant has tried to raise some legal issues, but they are non-specific and unless they result in the findings made by the Tribunal being tainted by jurisdictional error they will not avail the appellant. 

10. When I turn to the matters which the appellant appears to raise, I note that grounds 1 and 2 contain no particulars. Dealing with ground 1, I am not aware of any document which should have been disclosed under s 424A. The country information referred to by the Tribunal is not covered by s 424A.

11. The second ground relies upon four sections of the Act.  Section 424 permits the Tribunal to seek additional information.  Section 430 requires the Tribunal to record its decisions and give reasons.  Section 439 relates to disclosure of confidential information. Section 440 relates to the power of the Tribunal to restrict publication of certain matters.  I am not aware of any further information which it could be said that the Tribunal should have sought, and in any event this power is basically discretionary.  I am not aware of any defect in the form of the written decision of the Tribunal.  I do not know of any issue relating to confidential information or the restriction of publication which arises.  In any event, neither of these matters, other than s 424, are likely to give rise to jurisdictional error.  I accordingly can see no basis for the appeal succeeding on the second of the grounds I have set out above. 

12. The third ground is failure to uphold the two grounds for the claim.  The grounds were rejected on their merits.  I have read the reasons of the Tribunal.  I see no error of law amounting to jurisdictional error in the way the Tribunal dealt with the claims.  I have summarised the Tribunal’s reasoning above.  However unfortunate it may be from the point of view of the appellant, as I said when introducing this part of my reasons, there is no appeal relating to the findings of fact as such. 

13. The fourth ground was failing to observe proper procedures and in particular the provisions of s 66 of the Act.  Section 66 relates to notification of the decision relating to the grant of the visa.  I know of no matter which might avail the appellant relating to that notification and in any event it would be most unlikely, if there were something, to give rise to jurisdictional error.

14. The fifth ground is denial of natural justice.  Nothing specific is raised here.  I note that there was a hearing at which the appellant had an opportunity to present his case.  This ground has no substance. 

15. The sixth ground is ignoring evidence and making findings in the face of contradictory evidence.  This is just another example of the fact that this appeal does not, unless there is jurisdictional error, allow the court to examine these matters.  It is the Tribunal’s task to weigh the evidence, accepting and rejecting parts of it as seem proper to it, provided it makes no error of law. 

16. The last matter relates to an India country report.  This matter is in the same category.  It is open to the Tribunal to accept some country information and not other country information, just as it is open to the Tribunal to accept or reject evidence generally, again providing it makes no error of law. 

17. I must conclude accordingly that there is nothing in the specific matters that have been raised by the appellant in his written submissions which would justify allowing the appeal. 

18. In his oral submissions before me this morning, the appellant concentrated on the findings of the Tribunal that the government of India was taking steps to protect the Muslim minority in India from threats of harm or persecution by other interests.  Again it is necessary for me to say that the findings of fact are for the Tribunal and this was one of the findings of fact of the Tribunal in the present case.  The appellant has also said that he is not an educated man, with no experience in courts of law.  It is for that reason that I have taken the course, which I would not take in a case in which all parties were represented by lawyers, of reading and considering the material for myself.  The fact that the appellant is at the disadvantage he refers to, however, does not avoid the need for there to be a relevant error on the part of the court below before I can allow any appeal.  I cannot find any such error. 

19. That leads me to the reasons of Nicholls FM in which he dismissed the appellant’s original application for judicial review of the decision of the Refugee Review Tribunal.  The reasons are quite detailed and address all matters put before him or which appeared to him potentially to arise.  I have read the decision carefully.  I should say that I agree with it, and the reasons which were given by the Federal Magistrate.  For all these reasons the appeal before me this morning must be dismissed, and will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        22 November 2006

The Appellant appeared in person.

Counsel for the Respondents:	Mr A Markus
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	22 November 2006
Date of Judgment:	22 November 2006