SZHUL v Minister for Immigration and Citizenship

[2007] FCA 677

FEDERAL COURT OF AUSTRALIA

SZHUL v Minister for Immigration and Citizenship [2007] FCA 677

SZHUL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 262 OF 2007

RYAN J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 262 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

4 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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 262 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate on 8 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 31 October 2005 and handed down on 22 November 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of India.  Before the Tribunal the appellant claimed to have a well-founded fear of persecution in India because the appellant and his family were Tamil Muslims involved with a welfare association and had been persecuted by Hindu extremists.  The appellant claimed that his father had formed the Tamil Nadu Muslim Social Welfare Association in the region in which they lived to promote the religious and social welfare of expatriate Tamil Muslims.

3. The appellant claimed to have been involved in the association as a result of which he himself was persecuted by Hindu extremist organisations such as Rashtriya Swayamsevak Sangh which translates as the Association of National Volunteers (“the RSS”).  The appellant claimed that, in February or March 2002, his father’s shop had been broken into by Hindu extremists who attacked the family as spies for Pakistan and stabbed his brother to death.  Further, the appellant claimed that police had refused to assist his father and himself and had instead warned the appellant about being a Muslim.  The appellant claimed that, on or about 15 December 2003, his home in Tamil Nadu had been ransacked by members of the RSS and that he had been beaten and accused of trying to build a mosque in Ahmedabad.  As a result, the appellant claimed, he decided to leave India and came to Australia on 28 April 2004. 

4. The Tribunal found the appellant was not a truthful or credible witness, observing that he had not been prepared to be tested on specific details of his claims.  The Tribunal accepted that the appellant was a Muslim and had grown up in Tamil Nadu.  However, it did not accept that he had moved to Gujarat in 1992 and had lived in Saraspur for ten years.  It based its rejection of those claims on the appellant’s lack of knowledge of landmarks in the areas where he claimed to have lived and on his varying reasons for the family’s move and his inability to furnish details of the business which he said they had started.

5. The Tribunal did not accept that the appellant had been a member of the Muslim Welfare Association in Gujarat characterising his evidence about those activities as “vague.”  Nor did it accept that the appellant had been beaten or that family property had been destroyed or that the appellant’s brother had been killed.  It noted the absence of documentary evidence tending to establish the brother’s death.  The Tribunal regarded all those claims and the account of the family’s move from Tamil Nadu to Gujarat as fabricated because it did not accept the appellant as a witness of truth.

6. The Tribunal did accept that in recent years there had been an increase in tensions in India between adherents to different religious communities.  However, independent country information indicated that the Indian government was committed to protecting religious minorities.  Further, there was no evidence of discrimination against Muslims of a kind capable of amounting to persecution.  The Tribunal accepted that the State was able to provide the appellant with reasonable protection against Hindu extremists.

7. Before the Federal Magistrate the appellant relied on an amended application filed on 6 March 2006.  In it the appellant claimed that the Tribunal had been guilty of jurisdictional error, had failed to take into account independent country information and had erred in making adverse findings about his credibility.  He also sought to explain his lack of familiarity with the landmarks in Gujarat as due to his inability to speak Hindi.  His omission to provide documentary evidence of his brother’s death was attributed to the haste with which he had to flee India.  The appellant asserted that the protection of minorities by the Indian government did not occur in practice and that to negate a well-founded fear of persecution protection must actually be afforded and not merely provided for in legislation. 

8. The learned Federal Magistrate in considering the Tribunal’s decision in light of the claims made by the appellant found that the appellant had not identified the evidence or information which he claimed the Tribunal had not considered.  In his Honour’s view, the Tribunal was not required to refer in its reasons to every piece of evidence and every contention advanced by an applicant.  His Honour regarded the Tribunal’s decision as turning largely on findings about the appellant’s credibility which were not judicially reviewable.

9. The Tribunal’s finding that the appellant had never moved to Ahmedabad was a factual finding which did not concern a jurisdictional fact.  The learned Federal Magistrate considered that the Tribunal’s reliance on the appellant’s lack of knowledge of the area in which he claimed to have lived did not reveal a want of logic and, in any event, illogicality was not of itself a ground of review.  His Honour found the Tribunal’s conclusion that there was no evidence of discrimination against Muslims in India which would amount to persecution to have been open to it on the evidence.  Further, his Honour thought that the test for persecution postulated by the Tribunal did not misstate the law, observing at [27] of the reasons below;

   ‘But, even if the Tribunal had misunderstood the relevant test in the fashion asserted by the applicant, its disbelief of the applicant was the decisive factor in its decision.  At the end of the day, the Tribunal did not believe the applicant’s version of events or that he had suffered the persecution in India which he claimed.’

10. The notice of appeal to this Court filed on 23 February 2007 raised various grounds including a claim that the Federal Magistrates Court should have found that the Tribunal had made errors of law amounting to jurisdictional error, had denied the appellant procedural fairness, and had contravened s 476 of the Migration Act 1958 (Cth) (“the Act”). The notice of appeal also contended that the case was similar to SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 539, a decision of Turner FM. The notice of appeal also imputed to the Tribunal bad faith and a contravention of s 424A of the Act.

11. The appellant appeared today with the assistance of an interpreter.  He has not complied with a direction given by Deputy Registrar Farrell on 13 March 2007 that;

    ‘The appellant file and serve written submissions no later than five (5) clear working days before the hearing date, unless otherwise directed.’

12. Through the interpreter, the appellant professed an inability to understand what he was required to demonstrate in order to disturb the orders of the Federal Magistrates Court.  He also said that he was willing to abide by any orders of this Court.  It appears that his notice of appeal was prepared with the assistance of a person to whom he was introduced after leaving the Federal Magistrates Court when that Court delivered judgment on 8 February this year.  The draftsman was not the same person who had prepared the appellant’s application to the Federal Magistrates Court for judicial review of the decision of the Tribunal.  That may explain the inconsistencies between the grounds discussed by the learned Federal Magistrate and those advanced in the notice of appeal to this Court which has, accordingly, been bereft of assistance from the appellant in understanding the issues which he desires to raise.  The Court has, however, had the considerable advantage of detailed written submissions filed on behalf of the respondent Minister.  In the absence of a written outline from the appellant, those submissions have necessarily been directed only to the grounds set out in the notice of appeal which I have already summarised.

13. In the light of the Minister’s written submissions I have examined for myself the reasons of the Tribunal and the reasons of the learned Federal Magistrate and have been unable to discern in them any of the errors either canvassed in the Court below or raised by the grounds in the notice of appeal to this Court.  The decision of Turner FM in SZCBB [2007] FMCA 539 cannot assist the appellant as in that case his Honour refused judicial review. Some of the other matters raised in the notice of appeal advance new issues which, it seems, were not agitated in the Federal Magistrates Court but, in any event, I am satisfied from my examination of them and of the reasons of the Tribunal that none of them can be made out.

14. Accordingly, the appeal to this Court must be dismissed.  The order of the Court is that the appeal be dismissed with costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        8 May 2007

The appellant appeared in person
Counsel for the First Respondent:	Ms S Sirtes
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	4 May 2007
Date of Judgment:	4 May 2007