SZEUG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1054

FEDERAL COURT OF AUSTRALIA

SZEUG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1054

SZEUG AND SZEUH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 740 OF 2005

STONE J
1 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 740 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUG
FIRST APPELLANT

SZEUH
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

1 AUGUST 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the respondent’s costs in the amount of $1,000.

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	NSD 740 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUG
FIRST APPELLANT

SZEUH
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE:	1 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 21 April 2004.  The Tribunal refused to grant protection visas to the appellants.

   BACKGROUND

2. The appellants are citizens of India and are husband and wife.  They arrived in Australia on 17 November 2003 with their child and applied for Protection (Class XA) visas on 8 December 2003.  Only the husband made specific claims under the Refugees Convention and I shall refer to him as ‘the appellant’. 

3. According to his protection visa application, the appellant was born in February 1972.  He claimed to be an Ismaili (or Aga Khani) Shi’a Muslim. From 1995 to 2003 he was a salesman in a footwear store in Hyderabad and lived in Secundarabad from 1998 until his departure for Australia in November 2003. 

4. The appellant claimed that he left India because there was ‘no peace, stability and protection of human race’ and every so often communal riots would erupt with Muslims, as a minority, suffering the most.  He claimed that during such riots, he and his family had to run because their lives were in danger and that it had become unsafe for Muslims to live in India.

5. The appellant claimed that Muslims were being attacked and killed and their belongings looted.  He referred to the death of thousands of Muslims in Gujarat.  He stated that his residential building in Secunderabad had been surrounded by Hindu slum-dwellers and that Hindus had attacked him on two separate occasions in the year before his departure.  As a result was hospitalised ‘for weeks’.  He said that in August 2003 Hindus set fire to his house and most of his family’s belongings were lost.  Finally, the appellant claimed that the authorities turned a blind eye to Muslims and generally supported Hindus during rioting.

   THE TRIBUNAL’S REASONS

6. The appellant gave oral evidence at a hearing before the Tribunal and confirmed that from birth until 1998 he lived in Hyderabad.  He further explained that his residence in Secundarabad was only eight kilometres from his place of work in Hyderabad.  The appellant also stated that his fear of return to India was on the basis that assaults on Muslims were increasing and he was fearful of his young daughter’s safety. 

7. Although the Tribunal noted some discrepancies between the appellant’s oral evidence and the claims made in his protection visa application, it stated that it did not draw any adverse inferences from this but, in the case of inconsistency, relied on the appellant’s oral evidence.  The Tribunal stated that, in essence, the appellant’s claim of persecution on the Convention ground of religion was based on the two separate assaults by Hindus and the throwing of the burning object into his house.

8. While the Tribunal accepted that in the course of sporadic inter-communal violence the appellant was assaulted on two separate occasions, it noted that they had occurred at least three years apart and in two separate locations.  Aside from the fact that both incidents had their origin in the dispute over the Babri Mosque, it found that there was no evidence that suggested a connection between the two incidents.  The Tribunal further stated:

   ‘[The applicant] did not claim that his parents, who have continued to live at the same address in Hyderabad, have suffered any harm following the first incident.  Nor did he claim to have suffered similar harm in the twenty three months or so in which he had continued to live at the same address in Secundarabad following the second incident.’

9. The Tribunal also referred to independent country information that advised that inter-communal violence was not systematically organised or institutionalised in any way and was the product of unpredictable frictions over a number of issues.  As such, the Tribunal was not satisfied that the appellant’s chance of facing similar harm in the reasonably foreseeable future was anything more than remote.

10. The Tribunal stated that the appellant was unable to explain why he thought that the motivation behind the burning object being thrown into his house was religious persecution.  The Tribunal found it was equally plausible for this attack to have been a random act of vandalism and therefore was not satisfied that it was motivated by religious or any other Convention ground.

11. The Tribunal accepted as accurate independent country information that effective State protection was available to the appellant at a level sufficient to remove a real chance of persecution by Hindu extremists.  It also found that it was reasonable for the appellant to relocate to a different part of India.

12. Overall, the Tribunal was not satisfied that the appellant’s fear of persecution was well-founded and affirmed the delegate’s decision.

    PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

13. On 15 June 2004, the appellant filed an application for review under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court. The application set out a number of grounds of review but without any particulars. Moreover, as his Honour noted, the appellant did not provide any written submissions, nor did he wish to make any oral submissions at the hearing of the application. The Federal Magistrate stated at [14] that:

    ‘The manner in which the grounds have been drafted do not identify any error in the Tribunal’s decision nor any error in the procedures adopted by the Tribunal during its decision making process.  This effectively reduces the review process to a reading of the decision to determine whether there is any error identified on the face of the document itself.’

14. His Honour dismissed the application saying at [16]:

    ‘On a fair reading of the Tribunal’s decision and in the absence of any contrary material, the Tribunal accurately summed up the nature of the applicant’s claim.  All of the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it.’

    THIS APPEAL

15. The appellant filed a notice of appeal on 13 May 2005 and an amended notice of appeal on 20 June 2005. Subsequently, Acting Chief Justice Wilcox determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard and determined by a single Judge.

16. The grounds of appeal set out in the amended notice of appeal are:

    ‘1.That there was no evidence or other material to justify the making of the decision.

    2.The procedure that were (sic) were required by law to be observed in connection with [the] making of the decision were not observed.

    3.Further in finding it would be reasonable for [the appellant] to have to relocate to another part of India, the Tribunal by implication accepted that the [appellant] may suffer harm if he was to return to his home state.’

17. The first ground of appeal is entirely devoid of merit.  The Tribunal referred to extensive independent country information that supported its findings, which were clearly open to it.  There is no basis for this claim and it must be rejected.

18. The same can be said of the second ground of appeal.  The appellants applied to the Tribunal for review of the delegate’s decision.  The Tribunal informed the appellants that it had considered the material before it in relation to the application but was unable to make a decision in their favour on this information alone.  The appellants were therefore invited to attend a hearing.  They did so and the appellant gave oral evidence.  At the hearing I invited the appellant to tell me in what way the procedure adopted by the Tribunal was not in accordance with the procedures required by law but he was unable to do so.  Further, there is nothing in the material before the Court to suggest that the Tribunal failed to comply with its obligations under the Migration Act 1958 (Cth) or to support this ground of review.

19. The third ground of appeal involves consideration of the Tribunal’s finding that it was reasonable for the appellants to relocate within India.  That finding was made after and in addition to the finding that the appellant’s fear was not well-founded because there was no real chance that the appellant would suffer Convention based harm in the future.  It was an alternative reason for rejecting the appellant’s fear as well-founded.  The Tribunal expressed its view as follows:

    ‘Moreover, the Tribunal is satisfied that it is reasonable for the applicant to relocate to a different part of India. …

    …

    It is clear that the applicant’s fears are highly localised and confined to his residential area in Secundarabad.  Indian citizens enjoy freedom of movement within the country and generally speaking there would be no problems for Muslims relocating within India.  The applicant is young, literate, and he is clearly able to adapt to new environments, given his ability to travel to settle in Australia over the last few months.  The applicant did not claim and there was no evidence before the Tribunal to suggest that he will not be able to, or he will be prevented from, earning a living.  The Tribunal does not accept that the applicant will face problems of a communal nature throughout India.  The Tribunal is satisfied that if the applicant wished to avoid the possibility of further conflict with Hindus in Secundarabad or Hyderabad for that matter it is reasonable for him to relocate to a different part of India.’

20. The contention that the Tribunal impliedly accepted that the appellant had a well-founded fear of persecution for a Convention reason in making the relocation finding involves a misreading of the Tribunal’s reasons.  It fails to understand that the relocation finding was a separate and independent ground for affirming the decision of the delegate.  So much is clear from the passage of the Tribunal’s reasons dealing with this issue.  The third ground of appeal must therefore be rejected.

21. The appellant has been unable to point to any error in either the Tribunal’s reasons or his Honour’s judgment.  I have considered the Tribunal’s reasons and am unable to discern any jurisdictional error.  For that reason the appeal must be dismissed.  The respondent seeks costs in a fixed amount and I am satisfied that the amount of $1,000 is reasonable in all the circumstances. 

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

Associate:

Dated:            1 August 2005

The First Appellant appeared on behalf of the Appellants
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 August 2005
Date of Judgment:	1 August 2005