SZHFG v Minister for Immigration and Citizenship
[2007] FCA 1235
•10 August 2007
FEDERAL COURT OF AUSTRALIA
SZELK v Minister for Immigration and Citizenship [2007] FCA 1235
SZELK v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNALNSD 428 OF 2007
LINDGREN J
15 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 428 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZELK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
15 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
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 428 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZELK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE:
15 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION AND PROCEDURAL HISTORY
The appellant appeals from a decision of the Federal Magistrates Court of Australia given on 2 March 2007. That Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the predecessor of the first respondent (respectively, the Delegate and the Minister) refusing to grant a Protection (Class XA) visa to the appellant.
The Tribunal accepted that the appellant was of Indian nationality and was a Hindu. He was born in Hyderabad. He attended school for 18 years, including high school and junior college in Hyderabad. He lived at one address in Hyderabad from at least 1994.
The appellant first arrived in Australia on 24 August 1997. From 1997 to 1999 he was at college in Sydney, and again from 1999 until 2001, completing Diplomas in Business Management and Information Technology. However, he returned to India for a visit in October 2000, coming back to Australia on 26 February 2001. His visit to India was therefore for some four to five months. During that time he lived again in Hyderabad.
It was not until 29 September 2003 that the appellant lodged his application for the Protection (Class XA) visa. On 23 October 2003 a delegate of the Minister found that the appellant did not have a well-founded fear of persecution. On 12 December 2003 the appellant applied to the Tribunal for a review of that decision. On 30 June 2004 the Tribunal found that it did not have jurisdiction to review the decision, because the application had been received outside the prescribed time limit. On 5 May 2005, the Federal Magistrates Court quashed the delegate’s decision of 23 October 2003 and ordered that the appellant’s application for the Protection visa be redetermined according to law.
On 19 August 2005, the Delegate found that the appellant did not have a well-founded fear of persecution. On 7 September 2005, the appellant applied to the Tribunal for review of the Delegate’s decision. By a Decision Record signed on 9 December 2005 and handed down on 5 January 2006, the Tribunal affirmed the Delegate’s decision. On 31 January 2006, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision. On 2 March 2007 that Court dismissed the application and ordered the appellant to pay the Minister’s costs. On 20 March 2007, the appellant filed the notice of appeal that commenced the present proceedings.
THE APPELLANT’S CLAIMS AND THE TRIBUNAL’S DECISION
The appellant’s claims made in his Protection visa application were that:
· he feared persecution from both radical Muslims and radical Hindus in Hyderabad;
· his girlfriend was a Muslim and he feared that their relationship would lead to his being “injure[d]” by some Muslims;
· on the Hindu side, he feared the Shiv Sena Party, which had asked his parents to join it but had been rejected by them;
· relatives and friends had told him that if he “returned”, “something detrimental” would happen to him;
· he was planning to return to India upon completion of his studies when he was informed of “incidents in Hyderabad”;
· his parents had moved from Hyderabad to Mumbai (some 600 km to the west of Hyderabad) to live.
The appellant attended, with his adviser, a hearing before the Tribunal on 31 October 2005. He produced photographs of his girlfriend. In a number of respects noted by the Tribunal member, they appeared to be inconsistent with her being a Muslim. The Member did, however, accept, although with some doubt, the appellant’s claim that his girlfriend was indeed a Muslim. The Tribunal questioned the appellant about the manner of appearance of his girlfriend in the photographs, and the appellant seemed to accept that there was an inconsistency, because he explained that she dressed as she did in order to please the appellant.
A particular matter to which the Tribunal referred was that the appellant alleged that his girlfriend’s two brothers were fundamentalist Muslims who had been guilty of acts of violence in the past, and that one of them had threatened to kill him. In view of the girlfriend’s manner of dress, coupled with the fact that although the relationship had existed since 1984, and that there was no claim that the brothers had taken any steps to bring the relationship to an end, the Tribunal was not persuaded to accept the appellant’s claims with respect to his girlfriend’s brothers.
The Tribunal did not accept, either, that the appellant had a well-founded fear of persecution from the Hindu Shiv Sena Party. The Tribunal noted, for example, that the appellant’s father, a retired businessman, and his mother, a Government employee, had never sought police protection. The appellant attributed this to corruption and inefficiency on the part of the police, and to a fear on the part of his parents that if they sought police protection, they would become more vulnerable to Shiv Sena retaliation. The Tribunal did not accept this explanation.
While the Tribunal did not accept that the appellant had a well-founded fear of persecution in Hyderabad, it accepted that, in any event, he could relocate within India. The Tribunal noted that the appellant’s parents had moved to Mumbai to live. While the Tribunal did not accept that they had done so out of fear of persecution in Hyderabad, it accepted that it would be open to the appellant also to relocate to Mumbai.
Other matters to which the Tribunal referred were the appellant’s delay in lodging his Protection visa application, and his return to India for some four to five months in late 2000. The Tribunal noted that the appellant had waited for some two and a half years after his return from India (on 26 February 2001) before lodging his Protection visa application (on 29 September 2003).
Before the Tribunal, the appellant said that he had not discussed his alleged fear of persecution with anyone. Nor did he have any documentation, however incidental, to support his claims.
THE GROUNDS OF THE APPLICATION TO THE FEDERAL MAGISTRATES COURT AND THE GROUNDS OF APPEAL TO THIS COURT
In his application for judicial review to the Federal Magistrates Court and in his notice of appeal filed in this Court, the appellant has stated virtually identical grounds and identical particulars. The only difference is that in his notice of appeal he has prefaced each ground with the words “The learned Federal Magistrate failed to hold that”. Thus, for example, ground 2 in the Federal Magistrates Court was:
The Tribunal made jurisdictional error as it made a critical finding without evidence.
And in this Court the second ground of appeal is:
The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it made a critical finding without evidence.
The six grounds of appeal stated in the notice of appeal (without the particulars given of each) are as follows:
(1)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it irrationally, illogically and unreasonably rejected an important claim of the Applicant based on (a) pure speculation (b) findings against evidence and (c) by taking irrelevant issues into consideration. This claim is that his fiancee’s brothers are fundamentalist Muslims (CB122.3)
(2)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it made a critical finding without evidence
(3)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it (a) misunderstood & misapplied the test for concluding whether the applicant belongs to a particular social group (b) Did not deal with various groups advanced before the Tribunal.
(4)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it failed to carry the statutory function it was required to under s 91R(1) [of the Migration Act 1958 (Cth) (the Act)] and recklessly made a finding that the motive for harm was personal.
(5)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it breached s424A(1) [of the Act] since it failed to provide adverse information that it was required to provide to the applicant in writing, for his comments.
(6)The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it (a) in considering reasonableness of relocation Tribunal failed to ask a critical question and (b) misapplied the test for relocation.
On the hearing of the appeal, Mr Silva, solicitor, who appeared for the appellant, said that the finding in relation to the claim of persecution by the Shiv Sena Party was not the subject of challenge, and that “the main thing was about the threat from the family”. In his written submissions Mr Silva abandoned reliance on the fifth ground of appeal.
CONSIDERATION OF THE GROUNDS OF APPEAL
I will address the grounds of appeal in turn.
Ground 1
The particulars given of this ground are as follows:
(i)CB 122.2 – The Tribunal stated that the Applicant does not know the extent of the past acts of violence of his fiancee’s brothers and their criminal records. There is no logical reason why he should know the extent of that as he has been mostly overseas. Further he was not totally ignorant of that.
(ii)CB 121.9 – The Tribunal stated that the Applicant failed to mention that whether his girlfriend was under pressure from brothers to dress differently. The Tribunal failed to ask about this issue.
(iii)CB 121.9 – There is no basis for the Tribunal to say that an extremist male relative could have forced his sister not to wear dress like a Hindu. The Tribunal does not know how often she chose to wear such dress and it does not know how determined a person she is in doing what she wants to do. Also there is no evidence that she wasn’t so forced. The Applicant was also not given specific opportunity to state about that issue in the sense he was not specifically asked about it.
(iv)CB 121.90 – There is no evidence that the girlfriend was not under direct pressure to break off the relationship.
I do not think that Ground 1 is made out.
The appellant’s complains in respect of this ground that the Tribunal was obliged to make further inquiries of the appellant. Mr Silva referred in oral submissions to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [36] and [37] in the joint judgment of McHugh and Gummow JJ. It seems to me, however, that what their Honours there said in relation to a “failing to be satisfied” legislative provision is against, rather than for, the appellant in the present case. In any event, the appellant has not demonstrated either an evidentiary gap or irrationality that would show that the Tribunal asked itself the wrong question.
A particular criticism made by Mr Silva is of the Tribunal’s statement:
Moreover, the Tribunal found the Applicant’s knowledge of the brothers’ past to be vague. Given his claim that at least one of the brothers is threatening to kill him, it is surprising that the Applicant does not know (through his fiancé) the extent of past acts of violence and whether they have criminal records. This would be logical information to seek, not only to gauge the likelihood and level of threat to himself, but also the prospects for seeking police protection if, in fact, they have prior convictions. These factors, combined, leave the Tribunal not satisfied that the Applicant’s potential future brothers-in-law are Muslim fundamentalists.
Mr Silva said that the passage quoted was inconsistent with a statement by the Tribunal that it was surprised that the appellant and his family had not, as a local Hindu business family, sought police assistance, all the more so if, as the appellant had suggested, the girlfriend’s brothers had a dubious past of involvement in sectarian violence.
The submission, however, misconceives the position. The Tribunal was not accepting the appellant’s claims about the brothers’ involvement in sectarian violence or the particular brother’s threat to kill the appellant. Rather, the Tribunal was pointing to inconsistencies in the appellant’s claims in order to explain why the Tribunal did not accept them. It was saying that they were inconsistent with matters which the Tribunal would, if the claims were true, have expected to find.
The reasons the Tribunal gave for not being satisfied of the appellant’s claims in respect of his girlfriend’s brothers were:
(a) that the girlfriend could be expected to have dressed differently;
(b)that the girlfriend could be expected to have come under direct pressure to end her relationship with the appellant, and, indeed, that an extremist male relative could have achieved this, particularly given the long distance nature of the relationship since 1997 when the appellant came to Australia; and
(c) the vagueness of the appellant’s knowledge of the brothers’ past.
I do not accept that the Tribunal’s finding in the present respect was irrational, illogical, unreasonable, “pure speculation” or “against evidence”.
Moreover, if there was some “illogicality” or “irrationality” in fact finding, this would not establish jurisdictional error: see SZGCO v Minister for Immigration & Citizenship [2007] FCA 637 at [21] and authorities there cited. Illogical reasoning in fact finding does not of itself constitute jurisdictional error: see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [24]-[30]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [17]-[18]; WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 at [22].
If the Tribunal did make an error, it was a non-jurisdictional error of fact.
I do not accept the appellant’s submission that the Tribunal was obliged to prompt the appellant and stimulate him to “volunteer” further evidence. Depending on the circumstances, it can be entirely proper for the Tribunal to draw an adverse inference from an applicant’s failure to volunteer information on a matter. This will be so where an applicant must have known that the Tribunal had a particular concern, as in respect of the photographs of the girlfriend.
In my view, it is not shown that his Honour erred in rejecting the present ground or that any jurisdictional error was committed by the Tribunal.
Ground 2
The particulars that are given of this ground in the notice of appeal are as follows:
At page 14.70 (CB 122.70) the Tribunal said that:
“In any event, the Tribunal finds that, if the fiancée’s family were to harm the Applicant, the motivation would be personal, such as their failed aspirations for their daughter or concern about the social and community standing.”
There is no evidence that (i) what the Applicant’s fiancee’s family’s aspirations were for her (ii) there was any difference in social or community standing between the families (iii) whether the fiancee’s family was aware or concerned about that even if there is a difference. It is just pure speculation without any evidentiary basis.
It is important to note the opening words “In any event” in the passage quoted. The finding was not one on which the Tribunal’s decision depended.
The passage in question was preceded by the Tribunal’s conclusion that it was not satisfied that the appellant had a well-founded fear of persecution from his girlfriend’s brothers by reason of their being Muslim fundamentalists and his being a Hindu in a relationship with their sister.
It was not required that there be positive evidence of the three matters referred to in the appellant’s particulars of ground 2. The Federal Magistrate correctly rejected ground 2 on the basis that the Tribunal’s not being satisfied as to a particular matter does not require positive evidence in order to support a negative finding.
Ground 3
The notice of appeal gives the following particulars of ground 3:
There seems to be a problem as it appears that the Tribunal does not seem to grasp what was put forward by the Applicant’s advisor as to the common attributes that the particular social groups seems [sic] to share. Applying the definition stated in [36] of Applicant S the group identified satisfies those three conditions that are required to be met by a particular social group.
The reference to “Applicant S” in this passage is a reference to Applicant SvMinister for Immigration and Multicultural Affairs (2004) 217 CLR 387. At [36] in that case, Gleeson CJ, Gummow and Kirby JJ stated:
Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand. (Footnotes omitted.)
The Tribunal Member asked Mr Silva what attributes identified the particular social group and he referred, variously, to “a Hindu Muslim couple and marrying without the support of families or against the wishes of the families” and “a mixed marriage, Hindu/Muslim as compared to Hindu/Hindu marriage [and] marrying against the wishes of the family”.
I do not think that the Tribunal Member failed to grasp what Mr Silva was putting to him.
Mr Silva’s present criticism of the Tribunal appears to be of the exchanges that occurred on the hearing, rather than in the Tribunal’s Reasons for Decision. I note, however, that as an alternative ground, the Tribunal did state that it was not satisfied that on the appellant’s claims there would be persecution on account of his being part of any particular social group. The Tribunal regarded the claimed persecutors as the appellant’s girlfriend’s brothers alone. The Tribunal viewed the brothers’ motivation as disappointment and anger over their sister’s failure to come up to their religious expectations. The Tribunal seems to have accepted that they would not be persecuting the appellant because he was part of a wider social group, but would be doing so because he as an individual had brought about the religious downfall of their sister and shame on her family.
Much more could be said about this question than was said in the parties’ submissions. I prefer simply to note that the Tribunal’s “finding” was hypothetical because the Tribunal was not satisfied that there was a threat of persecution by the brothers at all.
Ground 4
The notice of appeal gives the following particulars of ground 4:
At page 14.60 (CB122.60) the Tribunal said that:
“With respect to religion, the Tribunal recognises that this has a pervasive influence on conduct in India, and is therefore difficult to isolate from personal motivations.
...
In any event, the Tribunal finds that, if the fiancée’s family were to harm the Applicant, the motivation would be personal, such as their failed aspirations for their daughter or concern about the social and community standing. The Tribunal is not satisfied that the essential and significant reason for this would be religion (although this would be a factor), any particular social group or any other Convention ground.”
It was not open to the Tribunal to hold that religion was not the essential and significant reason.
The Federal Magistrate accepted that ground 4 represented an attack on the Tribunal’s fact finding. I agree that this ground only seeks to reargue the merits of the appellant’s claims.
Ground 6
The particulars given of ground 6 in the notice of appeal are as follows:
The Tribunal failed to ask (a) How capable are the fundamentalists in harming someone in a large urban area?. Without asking this question the Tribunal could not have make [sic] a finding against the Applicant on the relocation issue.
The Tribunal should have also considered whether it is reasonable for the applicant to relocate to an urban area with the threat from the Fundamentalists.
The Tribunal did in fact examine the question whether the appellant could relocate within India if, contrary to the Tribunal’s findings, he was subject to persecutory interest on the part of religious fundamentalists. For example, the Tribunal referred to the appellant’s age, education, language skills, resourcefulness, and his parents’ relocation to Mumbai and the absence of any extenuating personal or health problems in the appellant’s case. No legal error by the Federal Magistrate or jurisdictional error on the part of the Tribunal is shown in the present respect.
There are two findings of the Tribunal that would support its affirming of the Delegate’s decision under review, that would support a dismissal by the Federal Magistrate of the application for review and now of the appeal to this Court, even if some of the grounds of jurisdictional error alleged were made out. These are the findings that police protection is available to the appellant and that the appellant could relocate to a different part of India. These two findings would support the dismissals mentioned on discretionary grounds.
CONCLUSION
For the above reasons, the appeal should be dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 15 August 2007
Solicitor for the Appellant Mr A N Silva of Silva Solicitors Counsel for the First Respondent: Mr G T Johnson Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 1 August 2007 Date of Judgment: 15 August 2007
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