SZJEG v Minister for Immigration and Citizenship

[2008] FCA 230

FEDERAL COURT OF AUSTRALIA

SZJEG v Minister for Immigration & Citizenship [2008] FCA 230

Migration Act 1958 (Cth)

SZJEG v Minister for Immigration & Anor [2007] FMCA 1542

SZJEG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1929 OF 2007

BUCHANAN J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1929 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJEG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with 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 1929 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJEG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is an Indian citizen.  He is 33 years old.  He is a Muslim.  He arrived in Australia on 9 January 2006 and lodged an application for a protection (Class XA) visa on 21 February 2006.  He claimed to fear persecution from extremist Hindu groups in India because he is a member of the Muslim League political party.

2. A delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused to grant the appellant a protection visa on 3 April 2006.  The delegate accepted that the appellant was a Muslim and may have been threatened by Hindu extremists but concluded, on the basis of independent country information, that effective protection would be available to the appellant in his home state of Maharashtra from the government constituted by the ruling secular Congress Party.

3. On 21 April 2006 the appellant made an application for review of the delegate’s decision by the Refugee Review Tribunal (‘the RRT’).  The RRT conducted an oral hearing on 29 June 2006.  In a decision handed down on 20 July 2006 it affirmed the delegate’s decision not to grant a protection visa.

4. The appellant’s main claims about the basis for his fear of persecution concerned his membership of the Muslim League until 2000.  His description of past events supporting his claim to fear persecution related principally to a potential assault on him during rioting in 1992-93 in Mumbai and upon assertions that on three or four occasions between 1996 and 2004 Hindus visited his house to enquire about his whereabouts.  The RRT, although accepting the appellant was a member of the Muslim League, noted that on his own evidence he had a limited role as a volunteer, had not held any positions in the party and stopped being a member in 2000.  Having regard to the lack of any suggestion of serious attempts to find or harm the appellant and his low-level political involvement, the RRT was not satisfied there was a real chance of persecution of the appellant in the foreseeable future.  The RRT said:

   ‘Based on the totality of the evidence before it, the Tribunal is satisfied that the applicant’s chance of facing harm by Hindus, extremist or not, for the reason of his Muslim religion is remote.  The Tribunal is satisfied that the applicant’s chance of facing harm by members of Hindu political parties and organisations and Hindus in general for the reason of his association with Muslim League and political opinion is remote.  The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason.’

5. Although, in the light of this finding it was unnecessary to do so, the RRT also dealt with the possibility the appellant might relocate in India and said:

   ‘According to his own evidence, the applicant’s problems and activities were highly localised and confined to his locality and the surrounding area.  He has provided no acceptable reason as to why he is unable to relocate internally.  Based on his own evidence of his activities, profile and experience the Tribunal does not accept as credible or plausible that any personal animosity that may have arisen out of his encounters with the local Hindus or Hindu political activities in suburban Mumbai is so deep that would propel his opponents to hunt and find him anywhere in a vast and densely populated country like India.’

   and:

   ‘The applicant is educated, relatively well travelled and speaks Hindi and English.  He did not claim and there was no evidence before the Tribunal to suggest that he would not be able to, or he would be prevented from, earning a living.  The Tribunal is satisfied that if the applicant wished to avoid the possibility of further conflict with his opponents in his neighbourhood or in Mumbai for that matter it is reasonable for him to relocate to a different part of India.’

6. The findings made by the RRT are ones entrusted to it under the Migration Act 1958 (Cth) (‘the Act’). Unless the RRT committed a jurisdictional error its decision is protected by the Act from judicial review.

7. On 8 August 2006 the appellant filed an Application in the Federal Magistrates Court of Australia (‘the FMCA’) for judicial review.  An Amended Application was filed on 2 November 2006.  It alleged jurisdictional error and other kinds of error.

8. On 4 July 2007 the application for judicial review was dismissed by the FMCA (SZJEG v Minister for Immigration & Anor [2007] FMCA 1542). At the hearing before the FMCA the appellant relied on written submissions and made no oral submissions. The Federal Magistrate concluded that no jurisdictional error was identified. He made clear that he was satisfied, independently of the appellant’s written submissions and grounds, that no jurisdictional error had been committed by the RRT.

9. On 26 September 2007 the appellant filed an appeal in this Court against the judgment of the FMCA.  The grounds of the appeal to this Court are identical to the grounds set out in the amended application in the FMCA.  They relate only to alleged error by the RRT.  There is no ground alleging error on the part of the FMCA, much less identifying the character of any such error.  It must be assumed, of course, that the appellant’s contention is that the FMCA came to the wrong conclusion but an appeal to this Court is not given for the purpose of simply allowing an appellant to restate contentions before the FMCA and hope for a better result.  In my view, the appeal is liable to be dismissed for failure to disclose appealable error.

10. The appellant is unrepresented and it is normal for allowance to be made for that fact.  Accordingly, some attention to the substance of the stated grounds of challenge is appropriate, even if not legally necessary.

11. The grounds of appeal are:

    ‘1.The Refugee Review Tribunal failed to exercise its duty under the section 424A of the Migration Act not to notify the applicant about the adverse finding from independent source.

    Particulars:

    There was no evidence to support the Refugee Review Tribunal’s finding that:

    (i)the independent information available also indicates that relations between religious groups are for the most part amicable; and

    (ii)there have been very few reports to sporadic communal clashes in recent years and the Tribunal did not find information suggesting that Muslims in Mumbai or Maharashtra have been systematically targeted by the Hindu majority or Hindu political parties, including Shiv Sena and BJP, since the mass riots of 1992/93.

    2.The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comment:

    Particulars:

    There was no evidence to support the Refugee Review Tribunal’s finding that:

    (i)the chance that in reasonably foreseeable future the applicant will be involved in violence motivated by religious differences and seriously harmed as a result is remote; and

    (ii)the Tribunal does not accept that the applicant’s association with Muslim League, his profile and his activities give rise to a real chance of persecution if he were to return to India and reside in Mumbai in the reasonably foreseeable future.

    3.The Refugee Review Tribunal failed to realise the reality of relocation in the context of applicant’s particular circumstances:

    Particulars

    A.There was no evidence to support the Refugee Review Tribunal’s finding that:

    (i)if the applicant wished to avoid the possibility of further conflict with his opponents in his neighbourhood or in Mumbai for that matter it is reasonable for him to relocate to a different part of India.’

12. The appellant filed written submissions in support of his appeal.  At the hearing of the appeal the appellant, who responded through an interpreter, made no oral submission.

13. The written submissions did not add anything of substance in relation to the first two grounds of appeal.  Although the appellant drew no attention to it in his written submissions the Minister conceded, before the FMCA and in his written submissions in this Court, that the RRT had made a factual error concerning the possibility that Muslims in Mumbai or Maharashtra may be ‘systematically targeted by the Hindu majority or Hindu political parties’.  The RRT said that it did not find any information suggesting this had occurred since the rioting in 1992-93 in Mumbai.  In fact, as the Minister acknowledged, there was some general country information suggesting the targeting of minorities, especially Muslims in Maharashtra.  The Minister argued that this circumstance did not raise any jurisdictional issue.  I agree.  Despite the suggested error about the content of some of the general country information (and it is by no means clear to me that the RRT did not understand the significance of that material) the RRT’s conclusions concerning the appellant were firmly based, as I earlier indicated, upon its findings about him, his limited role as a volunteer in the Muslim League and the fact that he had no real political profile.  This appeal does not represent, any more than the proceedings in the FMCA, an opportunity to debate factual matters which do not reveal jurisdictional error by the RRT.  I agree with the conclusion reached by the FMCA that this factual irregularity does not demonstrate jurisdictional error in the decision or proceedings of the RRT.  I should add, for completeness, that the appellant did not, in the FMCA or in this Court, in writing or orally, address any specific argument to this issue beyond the general statement appearing in ground 2 of his appeal, set out earlier.

14. The argument about the third ground of appeal contested the possibility of relocation.  The appellant said:

    ‘It is submitted that internal relocation is not an option in India.  It ignores the reality of India.  Although there are millions of people in the country, the people are close tie with each other.  People in India do not generally migrate around the country except on marriage or when sent to different places for employment.  The presence of an outsider would immediately create notice.  An assessor must not adopt an approach blinkered by the Australian experience.  Furthermore I cannot reasonably be expected to suppress the exercise of my inalienable human rights in order to avoid being subject to persecutory treatment.’

15. This submission faces two obstacles.  One is that it involves a merit review of the RRT’s conclusions about relocation.  A review of the merit of the RRT decision is beyond the scope of proceedings for judicial review, or the present appeal.  The other obstacle is that the RRT’s observations about relocation were not central to its decision.

16. In my view neither the grounds of appeal or the written submissions raise a question of jurisdictional error.  They amount to allegations of factual error in each case.  The FMCA was correct to reject the appellant’s challenge.  He can have no better result on the present appeal.

17. The appeal must be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        5 March 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr. J. Knackstredt
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 February 2008
Date of Judgment:	5 March 2008