SZDNN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 784

FEDERAL COURT OF AUSTRALIA

SZDNN v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 784

SZDNN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 564 of 2005

SACKVILLE J
14 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 564 OF 2005

BETWEEN:	SZDNN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s 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 564 OF 2005

BETWEEN:	SZDNN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court delivered ex tempore on 23 March 2005.  That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 15 April 2004.  The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) to refuse the appellant’s application for a protection visa.  The appeal has been heard by a single Judge in consequence of a direction by the Chief Justice of this Court.

2. The notice of appeal simply asserts that the Magistrate had erred:

   ‘by not finding that the [RRT] had made a jurisdictional error in reaching the conclusion that the Appellant is not entitled to [a] protection visa’. 

   The vagueness of the notice of appeal can be explained on the basis that the appellant, at the time the appeal was filed, did not have a copy of the judgment of the Magistrates Court.

3. At the directions hearing held on 13 May 2005, the appellant was directed to file and serve an amended notice of appeal giving full particulars of each ground of appeal relied on.  The appellant was also directed to file and serve written submissions in advance of the hearing.  The appellant filed an amended notice of appeal, but has not filed any written submissions. 

   THE APPELLANT’S CLAIMS

4. The appellant is a citizen of India.  He arrived in Australia on 6 July 2003.  On 31 July 2003, he lodged an application for a protection visa.  On 14 November 2003, the delegate refused to grant a protection visa.  On 15 December 2003, the appellant applied to the RRT for review of that decision.  As I have noted, the RRT affirmed the delegate’s decision.

5. The appellant is a Hindu, who speaks, reads and writes English, Malayalam and Hindi.  He comes from Kerala State.  However, he was employed by a large company in Abu Dhabi from July 1993 until May 2003.  According to the RRT, the appellant has a right to reside in the United Arab Emirates (‘UAE’).  He arrived in Australia on a visitors visa, travelling on an Indian passport issued in his own name in Abu Dhabi in November 1999.

6. The appellant claimed that he came from an area of Kerala in which he had seen killings by members of rival political parties.  The appellant claimed that he had become a leading member of the Communist Party.  In consequence, he had been attacked by a Muslim terrorist group called ‘PDP’ and had been severely injured.  He had moved in 1993 to the UAE for employment purposes and had thereby saved himself from harm in India.  The appellant said that when his contract in Abu Dhabi concluded, he had to return to India in May 2003.  He had anticipated that he might experience problems in India and for that reason obtained an Australian visa as ‘an option’.

7. According to the appellant, during his short stay in India after the termination of his employment contract, he was again tortured by his opponents.  He formed the view that there was no point remaining in India, especially in Kerala, because the political violence was so severe.  Accordingly, he decided to travel to Australia.

   THE RRT’S DECISION

8. The RRT noted that the delegate had found that the appellant had not put forward a credible case to support a claim to fear persecution.  The appellant’s claims were described as ‘vague, almost incoherent, lacking in detail and … not supported by the country information’.  The delegate had pointed out that no dates had been provided for particular events and that the appellant’s history of visiting India on leave every year while he worked in the UAE did not appear to be compatible with a genuine fear of persecution in India.

9. The RRT recorded that it had explored the appellant’s circumstances with him at a hearing heard on 19 March 2004.  At that hearing, the appellant elaborated on his claims.  He said that he had been an ordinary member of the Communist Party of India (Marxist) (‘CPI(M)’) from 1989 until October 1992.  His role in the party included identifying Muslim extremists and reporting them to the police.  He claimed to have done this by sending people to meetings of the PDP.

10. The appellant said that in consequence of these activities he had been attacked in 1992.  When returning home from a meeting, a group of persons had attacked him and he was wounded with a knife.  After his recovery, he ended his involvement in the Communist Party and shortly thereafter arranged to go overseas.

11. The RRT was sceptical that the appellant had played any key role in relation to the PDP by informing the police that they were responsible for attacks on Hindu meetings.  However, the RRT accepted as plausible that the appellant, as a member or supporter of the CPI(M), had been involved in violent clashes with other parties and that he may have been attacked as he described by PDP supporters.

12. The RRT was not, however, satisfied that the difficulty was anything more than a ‘one-off’.  The appellant had acknowledged that he had ceased to be interested in the Communist Party by October 1992.  He had never resumed any interest in or undertaken any activity on behalf of the Party during his lengthy visits to India, even though that Party had been in Government in Kerala from 1996 to 2001.  The RRT was:

    ‘not satisfied that, having encountered no difficulties for 11 years, it happened just as the [appellant’s] employment in the UAE finally drew to a close that his wife informed him that [his political opponents] had come back and that he was danger, and that he therefore made arrangements for his visa to come to Australian before he even returned to India.  Having regard to the [appellant’s] evidence at the hearing, the [RRT] does not accept the claim in his written statement that he was injured and his family tortured after he returned to India.’

13. The RRT inferred from the appellant’s evidence that the 1992 attack had been carried out by persons associated with a local PDP group which the appellant claimed to have reported to the local police.  The RRT was satisfied that if there was any cause at all for concern on the appellant’s return to India, it resulted from the personal animosity of individuals in the appellant’s home district, and not more generally.  The RRT regarded it as ‘highly implausible’ that on the basis of events in 1992, the PDP would attempt, after twelve years, to target and harm a person who had not been involved in politics for that period.

14. The RRT, in any event, was not satisfied that the appellant would be denied State protection in the form of a normal police response to any specific complaint or incident.  Despite apparently being on good terms with the police, the appellant did not claim to have lodged a complaint with the police about the 1992 incident.  There was nothing in the country material (nor any claim by the appellant) that the PDP had been protected by the Kerala authorities or that any criminal or violent activities it might have undertaken had been condoned.

15. Accordingly, the RRT was satisfied that the appellant did not face a real chance of persecution on return to India by reason of his actual or imputed political opinion.

16. Although the question of relocation did not ‘formally arise’ in view of the RRT’s findings, it nonetheless considered whether the appellant could reasonably avoid any local difficulties in his own district by relocating elsewhere in India.  The RRT did not accept that in the circumstances of this case, local antagonists would be motivated or able to pursue the appellant throughout the country.

17. The RRT pointed out that there are States in India with no significant reported difficulties for former CPI(M) supporters.  The appellant had lived away from Kerala for many years and had substantial work experience.  In addition, he could speak three languages.  The RRT, in these circumstances, was satisfied that it was reasonable for the appellant to avoid any perceived difficulties in his own district by relocating elsewhere in India.

    THE MAGISTRATES COURT

18. The Magistrate noted that the application seeking judicial review identified twelve grounds.  Of these, ten grounds appeared to be an attempt to revisit the RRT’s factual findings.  His Honour pointed out that the Court had no power to undertake such a task.

19. The eleventh ground appeared to be a complaint that the RRT in some way had been biased.  No particulars of that complaint had been provided.  Nor had any evidence been presented to the Court which would support such an allegation.  The Magistrate dismissed that contention.

20. The twelfth ground merely set out relief that the appellant sought and did not constitute a ground of review.

21. The learned Magistrate went on to consider whether any legal error could be discerned in the decision of the RRT.  No suggestion had been made that there had been a failure to comply with the procedural requirements imposed by the Migration Act 1958 (Cth). No other basis for establishing a jurisdictional error on the part of the RRT was apparent. The findings made by the RRT had been reasonably open on the material before it. Accordingly, its decision was not effected by any jurisdictional error.

    THE APPEAL

22. The appellant has not identified any basis for concluding that the Magistrate erred in dismissing the application for judicial review.  As the Magistrate held, the RRT, although accepting some of the appellant’s claims, rejected his claim that he had recently been subjected to physical abuse in India by reason of his political beliefs.  Taking into account the appellant’s work history and his repeated visits to India from the UAE, the RRT found that he did not have a well-founded fear of persecution in India by reason of his political opinions.  That conclusion was well open on the evidence.

23. The RRT gave a second, independent reason for affirming the delegate’s decision.  This was that the appellant, even if he did fear persecution in Kerala, could relocate within India.  That finding too, was well open and cannot be said to be affected by any legal error, let alone a jurisdictional error.

24. The amended notice of appeal challenges some of the factual findings made by the RRT.  Any such challenge, even if it had any substance, would not constitute a jurisdictional error on the part of the RRT and would not demonstrate that the Magistrate had made an error of law.

25. The amended notice of appeal also repeats a claim that the RRT had shown or been affected by ‘bias, apprehended bias or bad faith’.  There is nothing in the material before me that suggests the Magistrate was wrong to reject this claim by the appellant.  An unfavourable decision is not necessarily the product of bias or bad faith.

    CONCLUSION

26. The appeal must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             14 June 2005

The appellant appeared in person.
Solicitor for the respondent:	Clayton Utz
Date of hearing:	14 June 2005
Date of judgment:	14 June 2005