SZIQF v Minister for Immigration and Citizenship

[2007] FCA 1170

FEDERAL COURT OF AUSTRALIA

SZIQF v Minister for Immigration & Citizenship [2007] FCA 1170

SZIQF AND SZIQG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 793 OF 2007

EDMONDS J
7 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 793 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQF
First Appellant

SZIQG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first 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 793 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQF
First Appellant

SZIQG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	7 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court (Driver FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for protection visas.

   HEARING OF THE APPEAL

2. The appeal was listed for hearing at 2.15 p.m. on Wednesday, 1 August 2007.  At that time there was no appearance by either of the appellants or by a representative on their behalf.  I refrained from going on the bench until just after 2.30 p.m. because I was aware the appellants might be travelling to Sydney from Griffith where I understood they resided.  The matter was called on two separate occasions by the Court officer outside the Court but there was no response.  I checked the Court file to satisfy myself that the appellants had been informed in writing of the time, date and location of the hearing of the appeal and that the written communication was correctly addressed to the appellants at the address on the Court file.  On the Court file I identified a written communication dated 13 June 2007 which satisfied me in respect of all these matters.  There was no indication that the communication had been returned ‘not received’.

3. I indicated to counsel for the Minister that I proposed to consider and decide the appeal on the papers – the appeal book containing, inter alia, the reasons for judgment of his Honour below and the notice of appeal, as well as the written submissions filed on behalf of the Minister, a copy of which had been mailed to the appellants at the address recorded by the Court.  No submissions had been filed on behalf of the appellants and counsel for the Minister indicated she did not wish to make any further oral submissions.

4. I also indicated to counsel for the Minister that if prior to delivering judgment it came to the knowledge of the Court that the circumstances leading to the non-appearance of the appellants were such that it was reasonable to conclude that their non-appearance was due to circumstances beyond their control, I would give the appellants the opportunity of making submissions, either orally or in writing.

5. After adjourning the Court, I contacted the Court Registry and had a member of the Registry staff telephone a mobile telephone number recorded in the Court file as a number on which the appellants could be contacted.  I understand the Registry staff member spoke to a person who identified himself as one of the appellants and who explained that his non-appearance at the appeal hearing was due to the fact that he had missed the bus.  He was invited to write to the Court and explain those circumstances, however, I have neither heard nor received anything further.  I therefore proposes to deal with the matter on the papers.

   BACKGROUND

6. The appellants, who are husband and wife, are citizens of India.  They arrived in Australia on 12 March 2005, and on 22 September 2005 they lodged an application for protection (class XA) visas.  The claims to refugee status were made by the husband as the principal applicant.  The appellant wife did not advance any independent claims to refugee status, making her application as a member of the family unit.

7. In his protection visa application, the appellant husband (‘the principal appellant’) claimed that he was an active member of the Bajarand Party, which he said was very similar to the Bharatiya Janata Party (‘BJP’) and was in opposition to the ruling Congress Party.  The principal appellant claimed that since the Congress Party had taken power, his life had been extremely difficult.  Members of the Congress Party had attempted several times to kill him and some of his relatives.  If he returned to India, the principal appellant claimed that he was ‘pretty much sure’ that members of the Congress Party would again hurt him.

8. The Minister’s delegate refused the appellants’ protection visa application.  The delegate was not satisfied that the principal appellant was a person to whom Australia owed protection obligations, describing his claims as lacking relevant detail and substantiation.  Further, the principal appellant remained living at the same address before he departed India, and continued to run his own business, which the delegate considered to be inconsistent with his claims of being harassed by Congress Party members.

9. On 19 December 2005, the appellants lodged an application with the Tribunal for review of the delegate’s decision.

10. On 2 March 2006, the Tribunal handed down its decision affirming the decision of the Minister’s delegate.

11. The appellants sought review of the Tribunal’s decision by the Federal Magistrates Court and on 22 May 2006, the Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law.

    IN THE TRIBUNAL

12. At the invitation of the Tribunal, the principal appellant and his wife attended a hearing on 18 October 2006 and gave evidence by videoconference.

13. On 7 November 2006 the Tribunal handed down its decision affirming the decision of the Minister’s delegate.

14. In its reasons, the Tribunal set out a lengthy extract from the previous Tribunal’s decision record, in which the previous Tribunal summarised the principal appellant’s evidence at a hearing before it.  The Tribunal noted that it had received a letter from the principal appellant’s migration agent dated 19 June 2006, in which he informed the Tribunal that (AB 149):

    ‘1 have been asked by the Applicant to advise the Tribunal that the Applicant stands by all his earlier submissions and claims.  In light of the Applicant’s decision, I now await further instructions from the Tribunal.’

15. Having given evidence at the hearing before it, a comprehensive account of which is included in the decision record, the Tribunal was not impressed with the principal appellant (AB 154):

    ‘His responses were often weak, equivocal and vague.  When the Tribunal sought to explore with the Applicant why he thought members of the Congress Party would attempt to kill him the Applicant was vague and confused stating variously that he belonged to the opposing party, that it was because of religious differences and that in fact he was not sure and did not know why Congress Party people were endeavouring to harm him.  Whilst the Applicants have had recourse to a migration agent in the process of their review no written submissions were provided to the Tribunal that might throw light on the matter.’

    The Tribunal found that ‘on the basis of the [appellant’s] oral evidence’, it was not satisfied that either the principal appellant or his wife faced harm on their return to India by reason of imputed political opinion (AB 154).

16. Turning then to the principal appellant’s evidence as to political skirmishes and clashes between Muslims and Hindus in Gujarat, the Tribunal referred to the country information it had set out earlier in its reasons, which indicated that there were religious tensions in the state, and it accepted that the principal appellant may have at some point in time been involved in confrontations between Hindus and Muslims.  However, noting that the principal appellant was part of the Hindu majority, and that the ruling party in Gujarat was the BJP, the Tribunal found that ‘the [appellants] would be able to avail themselves of adequate and effective state protection in the event that he or his family where [sic] to become embroiled in an outbreak of communal violence between Hindus and Muslims on their return to India’ (AB 154).

    IN THE FEDERAL MAGISTRATES COURT

17. The application filed by the appellants in the court below (AB 1) contained five grounds, two of which were unnumbered and none of which were upheld by his Honour:

    (1)Ground 1: The Tribunal relied mostly on the previous RRT decision and did not consider the case independently:

    His Honour upheld the Minister’s submission that the Tribunal clearly considered the principal appellant’s claims independently of the previous Tribunal, but did so with the benefit of the evidence before that Tribunal, as it was entitled to do (S325/2002 v Refugee Review Tribunal [2005] FCA 125 at [28] per Wilcox J (AB 163 at [9]).

    (2)Grounds 2 and 5: The Tribunal was in breach of s 424A of the Act as it failed to give information it relied on; and did not give independent country information:

    His Honour upheld the Minister’s submission that the Tribunal did not have an obligation under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) in circumstances where the ‘information’ in question ‘is not specifically about the applicant or another person or is just about a class of persons of which the applicant or other person is a member’ (s 424A(3)(a)) or is information ‘that the applicant for review gave for the purposes of the application’ (s 424A(3)(b)) (AB 164 [9]). In so far as the Tribunal relied on information that the appellants gave to the previous Tribunal, his Honour held that was information given by them for the purposes of their review application (AB 162 [7]).

    (3)Ground 3: The Tribunal did not consider relocation issues:

    His Honour held that in circumstances where the Tribunal was in no doubt that the appellants would not be persecuted in India should they return there, there was no need for the Tribunal to consider relocation questions within India (AB 162 – 163 [7]).

    (4)Ground 4: The Tribunal wrongly concluded that the principal appellant’s claims were not convention related and was wrong in saying the principal appellant had state protection:

    His Honour upheld the Minister’s submission that the Tribunal’s conclusions on these issues were open to it on the evidence given by the principal appellant, and its assessment of his credibility having given that evidence, and that this ground of review constituted an impermissible attempt to challenge the merits of those conclusions (AB 165 [9]).

    THE GROUNDS OF APPEAL

18. The appellants advance five grounds of appeal.  Although the appellants assert errors on the part of the Federal Magistrate, in essence they seek to re-agitate the errors that they allege the Tribunal made in determining their application for review.

    Ground: Finding as to State protection

19. The appellants allege that the Federal Magistrate erred in failing to find jurisdictional error in the Tribunal’s conclusion that they could avail themselves of effective State protection.  Although it accepted that the appellants ‘may have at some point in time been involved in confrontations between Hindus and Muslims’, the principal appellant complains that the Tribunal wrongly determined the question of State protection on the basis of general independent country information, without considering more closely ‘whether or not the State of Gujurat and the Government of India could provide a reasonably effective and impartial police force and justice system to protect the life of the [principal appellant]’ (particulars para (xi), AB 171).

20. As noted above, on the basis of the principal appellant’s oral evidence at the hearing before it the Tribunal was ‘not satisfied that the [appellants] faced harm on their return to India by reason of an (imputed) political opinion’ (AB 154).  Nonetheless, it accepted that the principal appellant may ‘at some point’ have been involved in confrontations between Hindus and Muslims in his local area, on the basis of country information that focused on the particular political situation in Gujurat.  That country information referred to communal violence in the area in 2002 between Muslims and Hindus, and noted that it was widely alleged that the police and state government did little to stop the violence promptly, and at times encouraged or assisted Hindus in committing acts of violence (AB 152-153).  Since the appellants were Hindus, and it was the Muslim minority that authorities had been accused of failing to protect, I agree with the Minister’s submission that it was open to the Tribunal to find that even if the appellants ‘were to become embroiled in a further outbreak of communal violence’, they could avail themselves of effective state protection.

21. Contrary to the appellants’ assertion, the Tribunal clearly had regard to the situation in Gujurat.  It did so in circumstances where the highest the Tribunal could put the appellants’ case was that there was a possibility that they may again be caught up in an episode of communal violence, as opposed to being individually targeted.  The Tribunal’s finding that the appellants could avail themselves of state protection, by reason of their being members of the Hindu majority, was consistent with the country information on which it relied to the effect that if anyone had not been able to avail themselves of such protection in past episodes of communal violence, it was the Muslim minority.  I agree with the Minister’s submission that that finding was reasonable in the circumstances and does not give rise to any jurisdictional error.  This ground of review was properly dismissed in the court below.

    Ground 2: Failure to find jurisdictional error with regard to definition of persecution

22. The particulars to this ground of appeal suggest that the appellants’ complaint lies with the Tribunal’s conclusion, on the basis of the principal appellant’s evidence at the hearing before it, that he would not suffer harm on his return to India as he claimed.  I agree with the Minster’s submission that that finding was open to the Tribunal on its assessment of the evidence of the principal appellant.  By reason of that assessment, and by reference to the country information that suggested that if a further outbreak of communal violence occurred, they would be protected, the Tribunal concluded that the appellants did not have a well-founded fear of persecution.  I also agree that this ground of appeal, which was not raised directly in the court below, constitutes an attempt to challenge the merits of the Tribunal’s conclusions, and it must be dismissed.

    Ground 3: Breach of s 424A of the Migration Act

23. The appellants assert, on the basis of the High Court’s decision in SAAP v Minister for Immigration, Multicultural & Indigenous Affairs (2005) 215 ALR 162, that the Tribunal had an obligation to inform the principal appellant of the adverse information held against him. It is not clear from the particulars to this ground of appeal what ‘information’ the appellants say was not, but should have been, put to them in writing pursuant to s 424A. Since the information upon which the Tribunal primarily relied to reject the principal appellant’s claims was the evidence he gave at the hearing before it, which information would fall within the exception in s 424A(3)(b), it is difficult to identify a breach of s 424A(1).

24. In the court below, the complaint of breach of s 424A – to the extent to which it was particularised – related to the Tribunal’s failure to put to the principal appellant the country information upon which it relied. Such information clearly falls within the exception to s 424A(1) in s 424A(3)(a), being information ‘that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member’. His Honour concluded that there had been no breach of s 424A of the Act; there is no error in respect of that conclusion and this ground of appeal must be dismissed.

    Ground 4: Failure to consider the serious harm test and whether the principal appellant would be at risk if he returned to India

25. Although framed as a failure to consider whether the principal appellant would be at risk if he returned to India – an allegation that cannot be sustained in light of the Tribunal’s clear finding on that question – the particulars to this ground relate to the Tribunal’s failure to deal with the question of relocation.  As the Minister noted below, and his Honour accepted, the allegation that the Tribunal failed to consider relocation issues assumes that the Tribunal was bound to do so.  However, issues of relocation would only have arisen if the Tribunal had accepted that the principal appellant had a well-founded fear of persecution should he return to his home in Gujurat.  In circumstances where the Tribunal did not accept that the principal appellant had a well-founded fear of persecution, the question of whether or not he could avoid that persecution if he relocated to another part of India simply did not arise.  His Honour below was correct to dismiss this ground of review, and it must again be dismissed.

    Ground 5: Failure to properly consider discrimination amounting to persecution in India having applied the wrong test

26. The first particular to this ground of appeal asserts that ‘the Tribunal failed to properly consider the serious harm that the applicant is likely to face if he returned to the country considered by the Tribunal to be safe to return to’ (particulars para (1), AB 174).  The essence of the appellants’ complaint, however, appears to be the Tribunal’s assessment of the credibility of the principal appellant’s claims, by reason of the lack of detail and vague manner in which those claims were expressed (particulars para (ix), AB 176).  The appellants submit that the manner in which their claims were summarised and finalised ‘would suggest to an ordinary person that the Tribunal has shut its mind and approached the hearing with a pre-determined notion that the [principal appellant] was one lacking credibility and therefore his claims were not credible’ (particulars para (viii), AB 175).

27. The appellants ran a similar ground in the court below, alleging that the Tribunal had not independently considered the principal appellant’s claims.  His Honour below dismissed this ground of review, accepting the submission of the Minister that the Tribunal had extensively questioned the principal appellant about the claims he made, asking him to elaborate on specific aspects of those claims, challenging the relationship between the events in which the principal appellant claimed he was actually involved and his alleged political affiliation, and putting to him that he could avail himself of state protection.  The Tribunal’s conclusions as to the principal appellant’s claims to refugee status were made following the hearing, in circumstances where it was not impressed with him as a witness and was not satisfied, on his evidence, that he would suffer harm as he claimed.

28. The Tribunal’s assessment of the evidence presented to it by an applicant is a matter for it: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 – 36 per Brennan J, cited with approval in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. To the extent that the appellants are now alleging apprehended bias on the part of the Tribunal – an allegation that was not raised below – the allegation is without foundation and must be dismissed. The appellants have not particularised in what respects the Tribunal had shut its mind to their application, let alone led any evidence in support of that allegation. A hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings and the matters in issue in this case would not reasonably apprehend, an the basis of the Tribunal’s reasons, that it did not bring an impartial mind to the resolution of the applicant’s review application: Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425.

    CONCLUSION

1. The appeal must be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        7 August 2007

Solicitor for the First Appellant:	No appearance
Solicitor for the Second Appellant:	No appearance
Counsel for the First Respondent:	Ms A Mitchelmore
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	1 August 2007
Date of Judgment:	7 August 2007