SZGFI v Minister for Immigration and Citizenship

[2007] FCA 225

FEDERAL COURT OF AUSTRALIA

SZGFI v Minister for Immigration and Citizenship [2007] FCA 225

MIGRATION – no point of principle

Migration Act1958 (Cth) ss 36(2)(a), 422B, 424A, 430

Re Minister For Immigration And Multucultural And Indigenous Affairs; Ex Parte Lam 214 CLR 1
SZGFI & Ors v Minister For Immigration & Anor [2006] FMCA 1820

SZGFI, SZGFJ AND SZGFK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
2488 OF 2006

TRACEY J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2488 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGFI
First Appellant

SZGFJ
Second Appellant

SZGFK
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The appeal be dismissed.

3.The first and second appellants pay the first respondent’s costs which are fixed at $3000.00.

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	2488 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGFI
First Appellant

SZGFJ
Second Appellant

SZGFK
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate given on 8 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 March 2005 and handed down 20 April 2005: see [2006] FMCA 1820. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellants.

2. The appellants are citizens of India who arrived in Australia on 25 January 2004. They entered on short stay visitor’s visas. The appellants are respectively husband, wife and infant son.  On 25 February 2004 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  Only the appellant husband made claims under the Convention with the appellant wife and son relying on membership of his family unit.  As members of the same family unit the outcome of the appellant wife’s and  and son’s applications depended on the outcome of the appellant husband’s application.  In these reasons the appellant husband will be referred to as the appellant. The appellant claimed to have a well founded fear of persecution because of his religion and political opinion.  The appellant claimed to be a secretary of the Muslim Student Federation in Pune and to have been arrested and detained by Hindu extremists and being subject to verbal and physical abuse.  The appellant claimed that he had received death threats and extortion threats from rival political parties.  The appellant claimed that he had not received assistance from the authorities: being a Muslim in a Hindu area limited the assistance available to him. His family was, he claimed, also in danger.  

3. On 27 February 2004 a delegate of the first respondent refused the application for a protection visa and, on 25 March 2004, the appellant applied to the Tribunal for a review of that decision.  On 14 April 2004 the Tribunal invited the appellants to attend a hearing.  On 7 June 2004 the appellant attended and was assisted by a Hindi interpreter.  He gave oral evidence and submitted various Amnesty International Reports to the Tribunal.

4. On 15 October 2004 the appellant was informed that the Tribunal had been re-constituted after the retirement of a member and that the Tribunal would not conduct an additional hearing but that it had before it tapes of the original hearing and the Departmental and Tribunal files.  The Tribunal informed the appellant that, if further information was to be submitted, it was to be submitted before 29 October 2004.

5. On 2 November 2004 the Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act1958 (Cth) (“the Act”) to which the appellant responded in a letter dated 16 November 2004.

THE DECISION OF THE TRIBUNAL

1. The Tribunal found that it could not be satisfied that the appellant had suffered Convention related harm or that he would face harm if he returned to India in the foreseeable future. The departure of the appellant from India on his own passport indicated to the Tribunal that he was not of concern to the Indian authorities.  Further, his return to India after earlier travel to Kuwait indicated to the Tribunal that the appellant did not have a subjective fear of persecution.  Because of his travel to and from India the Tribunal was unable to accept that the appellant had been detained on numerous occasions.

2. The assertion by the appellant that he was a member of a student federation or a student union was rejected. The Tribunal found that he completed his studies in 1981, he was 38 and that the research by the Tribunal indicated that the only student organisation in Pune was a Students Islamic Movement of India which was a Palestinian organisation.  As a result of these findings the Tribunal could not be satisfied that the appellant was a member of a student organisation.  As the Tribunal found that he was not a member of any Muslim student organisation it could not accept that he was arrested and detained by non-state agents or state agents by reason of such membership.

3. Independent country information was considered by the Tribunal and it was found that it did not support the claim that police do not accept complaints from Muslims.  Similarly, on consideration of independent country information, the Tribunal determined that it was unable to accept that the appellant did not have the practical protection of the Indian state or that the Indian government does not protect Muslim communities.  The Tribunal found that the appellant is able safely to return to India

THE DECISION OF THE FEDERAL MAGISTRATE

1. On 4 May 2005 the appellant applied for judicial review of the decision of the Tribunal in the Federal Magistrates’ Court. In an amended application the appellant claimed that: the appellants satisfied the Convention definition entitling them to a protection visa; the Tribunal committed legal and factual error in its reliance on independent country information; the Tribunal erred in its factual findings; the Tribunal was limited in its consideration of the matter and did not consider the statements of the appellant; the Tribunal failed to demonstrate how the appellant did not satisfy the criteria in s 36(2)(a) of the Act; and the Tribunal breached the rules of natural justice. He further relied on the grounds in his initial application. They were that:

   1.        The Tribunal acted on unsubstantiated assumptions.

   2. The Tribunal failed to take into account the US Department of State 2003 Country Report on Human Rights.

   4.The Tribunal did not give adequate weight to the assertions by the appellants that they would be killed because of their ethnicity and background. They are a minority in India.

   5.The assertion that they have a genuine fear for their physical safety.

   6.Greater weight should have been given to Amnesty International Annual Reports on India.

THE DECISION OF THE FEDERAL MAGISTRATE

1. The Federal Magistrate found that the Tribunal considered the factual background before concluding that the appellant did not suffer Convention related harm in India. He held that the choice and assessment of independent country information was a factual matter for the Tribunal and that it was open to the Tribunal to give consideration to this information in the manner which it did. The Federal Magistrate noted that the letter sent to the appellant pursuant to s 424A of the Act advised about independent country information even though the section did not so require. The Tribunal did not err in its use of this information. Moreover, the Federal Magistrate found that the Tribunal did give reasons as required by s 430 of the Act in respect of the appellant’s entitlement to a protection visa.

2. In relation to the ground alleging a denial of natural justice the Federal Magistrate found the ground to be so broad and ill particularised that it was rendered meaningless. The appellant was afforded procedural fairness and there was no denial of natural justice. The conduct of the Tribunal was consistent with the requirements of s 422B of the Act. The grounds in the original application were rejected because the Federal Magistrate found that these grounds merely raised factual issues in the nature of merits review and, accordingly, they could not be entertained.

NOTICE OF APPEAL

1. The notice of appeal to this Court raises the following grounds:

   1.        The Federal Magistrate erred by failing to recognise the argument that the Tribunal failed to rely on “the real facts” based on the oral evidence given by the appellant at hearing.  The Tribunal did not have power to disregard the oral evidence of the appellant.

   2. The Federal Magistrate had failed to recognise that the Tribunal had misunderstood the claims of the appellant because of its findings in relation to detention and legal departure from India, findings made contrary to s 414 of the Act. The appellant asserts that these findings were unfair and in breach of principles of fairness as enunciated in Re Minister For Immigration And Multicultural And Indigenous Affairs, Ex parte Lam (2003) 214 CLR 1.

   3.        The Federal Magistrate failed to accept that the Tribunal failed to analyse the “real chance” test of future harm.  The Tribunal “failed to do the s 91R test”.

2. At the hearing of the appeal before me the appellant appeared in person.  He had the assistance of an interpreter.  He had earlier filed detailed written submissions. He told me that his notice of appeal and the submissions had been prepared for him by a lawyer whose name he did not know. I sought to have the appellant explain what was meant by some of his grounds and by some of his submissions. He was not able to assist.

3. A reading of the appellant’s grounds and submissions suggest that his real cause of complaint is that he disagrees with the Tribunal’s findings that he was not a member of a student federation, that he had not been arrested, detained and harmed in India and that it would be safe for him to return to that country. These were findings that were open to the Tribunal on the evidence before it and, like the learned Magistrate, I can find no jurisdictional error which affected the Tribunal’s decision. No appellable error has been demonstrated.

4. The appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        27 February 2007

Appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007