SZJNY v Minister for Immigration and Citizenship

[2008] FCA 624

FEDERAL COURT OF AUSTRALIA

SZJNY v Minister for Immigration & Citizenship [2008] FCA 624

SZJNY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 15 OF 2008

GILMOUR J
8 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 15 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	8 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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 15 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	8 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Federal Magistrate Raphael of 17 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 30 August 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   THE APPELLANT’S CLAIMS

2. The appellant is a citizen of India.  Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his political opinion.  The appellant asserted that he had begun his association with a political party called Dravida Munnetra Kazhagam (“DMK”) in Tamil Nadu in 1985, putting-up posters and doing odd jobs at election time.  He then claimed to have moved his allegiance to its offshoot, the Maurmalarchi Dravida Munnetra Kazhagam (“MDMK”) party in 1994 and assisted by conveying people to and from party meetings.

3. According to the appellant, the rival Ahila India Anna Dravida Munnetra Kazhagam party (“AIADMK”) was the ruling power, at the state level, in 2001 and contrived to destroy the MDMK and its leader, “Vaiko”.  The appellant stated that Vaiko was a supporter of the Liberation Tigers of Tamil Eelam and was arrested under the Prevention of Terrorism Act after making speeches supporting that organisation in 2002.  The AIADMK allegedly masterminded the arrest.  The appellant claimed that AIADMK members began harassing MDMK members and sought to have them join their own party.  The appellant was identified as a target as he had a large family network from which to draw recruits.  He and his wife were threatened after he refused to transfer his allegiance.

4. The appellant stated that he and a friend agreed to join the AIADMK as a cover until Vaiko was released.  He claimed that, when Vaiko was released in 2004, he was threatened by AIADMK members for attending a gathering to welcome the MDMK leader.  When he approached the police, they allegedly responded by telling him to join the AIADMK.

5. The appellant said that he then decided to cease his political involvement, and he moved to Madras.  However, due to the December 2004 tsunami in the area he returned home.  He alleged that AIADMK supporters interfered with the provision of relief money to his family.

6. After moving between Kerala, Bangalore and Madras, the appellant ultimately moved to Australia.  He claimed that the AIADMK is no longer in power and that the MDMK’s former leader, Vaiko, has since switched allegiance to the AIADMK.

   THE TRIBUNAL DECISION

7. The Tribunal found the appellant to be a credible and truthful witness.  It accepted the appellant’s account of his political affiliations between 1985 and 2004, and accepted that he had come under pressure form the AIADMK due to his support of its opponents.

8. However, the Tribunal did not accept that “intense pressure and threats” directed towards the appellant and his family constituted “persecution” for the purposes of the Refugees Convention.  It did not accept that the discriminatory action of the AIADMK in apportioning disaster relief would constitute serious harm as contemplated by the Convention.  It accepted his oral evidence that he did not wish to be involved in politics in India in the future and that the political situation in Tamil Nadu had changed as the AIADMK had lost power in the most recent elections.  The Tribunal found that the chance that the appellant would be targeted by AIADMK members in the reasonably foreseeable future was remote.

9. The Tribunal noted that the appellant had raised concerns about being attacked by locals from his coastal area when they became intoxicated.  It was, however, satisfied that the chances of such an attack were remote and was not satisfied that such attacks would be for a Convention reason.  It also noted that in the changed political climate there was insufficient evidence to suggest that police protection would be withheld if these incidents occurred.

10. The Tribunal, however, did not accept that the appellant’s name was on a list of people targeted for attacks and that his life was in danger.  Nonetheless, it went on to conclude that if the appellant continued to hold a subjective fear of harm in the local area of Athirampattinam, it would be reasonable for him to relocate elsewhere in Tamil Nadu or indeed to another part of India.

11. The Tribunal accordingly dismissed the application for review.

    PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

12. Before the Federal Magistrate the appellant raised some seven grounds in his application.

13. First, the appellant claimed that Tribunal decision had been affected by actual bias.  It was not particularised.  There was no evidence to support this assertion.

14. The second ground argued that the Tribunal had failed to apply the test of serious harm.  It was not particularised.  His Honour found that the Tribunal had considered the test of serious harm and that its finding was one of fact.  No jurisdictional error was demonstrated. 

15. The appellant’s third ground was that the Tribunal had used out-of-date country information.  The Tribunal did not appear to have relied on any country information in reaching its decision. 

16. The fourth ground was that the Tribunal had applied too high a burden of proof and failed to give the appellant the “benefit of the doubt”.  The only relevant evidence given by the appellant and which was not accepted by the Tribunal was that his name was on a list of people to be targeted and that his life was in danger.  Otherwise the Tribunal had accepted his evidence.  The appellant also complained that the Tribunal failed to consider his case as a whole.  The Federal Magistrate rejected both limbs of this ground of review. 

17. The fifth ground of appeal was that the Tribunal had failed to consider all integers of the appellant’s claim.  It was not particularised and it was not made out.

18. The appellant’s sixth ground was that the Tribunal had failed to consider the appellant’s claim that he was under extreme pressure from the AIADMK or his claims arising from his Muslim religion.  The Federal Magistrate found that the Tribunal did consider the pressure he had been under in relation to the AIADMK but noted that the AIADMK was no longer in power and he was not likely to be harmed.  The appellant had not raised the matter of his Muslim religion before the Tribunal.  The Federal Magistrate held that in the circumstances the Tribunal had no duty to inquire into such a matter.

19. Ground seven was that the Tribunal had failed to note that he satisfied the definition of a refugee.  His Honour was satisfied that the Tribunal had acted in accordance with its statutory obligations as it did.

    THE PRESENT APPEAL

20. The notice of appeal raises several grounds, many of which overlap with those argued before the Federal Magistrate. 

    1.The single Judge of the Federal Magistrate Court in his Honour’s judgment delivered of the 17 December 2007 failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act1903.

    2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

    3.The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.

    4.The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

    5.The RRT emphasised on some irrelevant question at the oral evidence and ignored my political background that put my life in risk.  In doing so the Tribunal may be said to have ignored relevant material, relied in part on irrelevant material and/ or made fining which were erroneous or mistaken.

    6.I strongly believe that there is a lack of procedural fairness in my case as was in the case of “Muin”.  My case is identical to Muin contending a want of procedural fairness in two respects.  Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them.  It is the first of those contentions which is relevant here.

    7.That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claim.

    8.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

    REASONS

    Grounds 1, 2, 4, 5, 7 and 8

21. These are mere unparticularised assertions that the Federal Magistrate failed to find errors of law and fact, or a want of procedural fairness, failed to take account of relevant material and failed to take into account irrelevant material which individually or in combination constituted jurisdictional error on the part of the Tribunal.  The appellant made no attempt to articulate how it was that the Federal Magistrate erred.  I can find no relevant error.  Each of these grounds fails. 

    Ground 3

22. The appellant complains that the Federal Magistrate failed to apply the principles established by Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265. That case concerned an Indian national who sought review of a decision of a delegate of the Minister which refused his claims to be a refugee within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The appellant claimed that, on the proper interpretation of the Convention definition, a decision maker should be required to consider not only whether there is a well-founded fear of persecution, but also whether the applicant can reasonably be expected to live in another part of the country.

23. The Tribunal’s primary finding was that the appellant did not have a well-founded Convention based fear of persecution in India.  It was not, in these circumstances, strictly necessary for the Tribunal to consider whether it was reasonable to expect the appellant to relocate within India.  The Tribunal nonetheless considered whether it was reasonable, in circumstances where the appellant continued to have a subjective fear of being harmed in the local area of Athirampattinam, for him to relocate to another part of Tamil Nadu removed from his local area or else to another part of India.  There was nothing before the Tribunal to indicate that it was unreasonable for the appellant to do so.  Indeed, the position was to the contrary.  The appellant was a skilled welder who had lived and secured work in Kerala and Bangalore in the past and could reasonable be expected to do so again.  The approach of the Tribunal on this subjugated question was correct and quite consistent with the principle outlined in Rhandhawa.  It also accords with the reasonableness test concerning relocation formulated in the recent decision of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 637.

24. Although the case of Rhandhawa was not raised before the Federal Magistrate nonetheless his Honour did consider the question of the appellant’s ability to earn a living elsewhere other than his home town [22]. No relevant error arises in respect to this ground.

    Ground 6

25. The appellant contends that his case is similar to the case of Muin v Refugee Review Tribunal (2002) 190 ALR 601. In that case, the Tribunal had misled the applicant into believing it had read certain documents, relevant to the applicant’s application for review, when it had not done so. The High Court held that there was a failure to accord procedural fairness to the appellant in relation to those documents. It has no application to the facts of this case. This ground of appeal is not established.

    CONCLUSION

26. The appeal should be dismissed and the appellant should pay the first respondent’s costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour

Associate:

Dated:             8 May 2008

The Appellant appeared in person.
Counsel for the Respondent:	Ms L. Clegg
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 2008
Date of Judgment:	8 May 2008