SZJVL v Minister for Immigration and Citizenship

[2007] FCA 1645

FEDERAL COURT OF AUSTRALIA

SZJVL v Minister for Immigration and Citizenship
[2007] FCA 1645

SZJVL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1230 OF 2007

RARES J
24 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1230 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	24 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be refused.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,200.

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 1230 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	24 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an application for an extension of time in which to file an application for leave to appeal from the decision of the Federal Magistrates Court to dismiss a claim for constitutional writ relief directed to the Refugee Review Tribunal’s refusal to grant the applicant a protection visa:  SZJVL v Minister for Immigration [2007] FMCA 864.

2. The application for an extension of time is supported by an affidavit which simply contains the name, address and occupation of the applicant and nothing at all in explanation for the delay.  The draft notice of appeal contains no grounds at all. 

3. Ordinarily the application could be summarily dismissed as transparently groundless.  The failure to identify any reason for the delay or any case at all would be sufficient to show that this is not a proper case which should be allowed to proceed:  Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and 540 [66 par 4] per Kirby J. In that case, their Honours referred with approval to the way in which Lord Denning MR explained the approach of the Court to the grant of an extension of time in which to lodge an appeal in R v Secretary for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 at 1091. His Lordship said that the Court required an outline of the case and would grant leave where it appeared to be one which was strong on the merits and which ought to be heard in fairness to the parties. A flimsy case, weak on the merits, would not be one in which an extension of time should be granted.

4. Because the applicant is self-represented I have made allowances to permit him to advance his arguments orally both in support of the application for an extension of time and in support of any appeal.

   THE APPLICANT’S CLAIMS

5. The applicant is a citizen of India who arrived in Australia in May 2006 and applied for a protection visa early the following month.  A delegate of the first respondent refused that application in late June 2006 and then he applied to the Refugee Review Tribunal for a review of that decision.  The tribunal conducted a hearing at which the appellant gave evidence.  The tribunal found that the applicant lacked credibility.  He had given an initial story to the tribunal which it found to be a series of assertions which were neither plausible nor supported by any external evidence.  It said the second story which he gave to the tribunal had more elements of truth but did not provide a ground for his claim to a protection visa. 

6. The tribunal commenced by rejecting the applicant’s claim that he had been targeted by Muslim political parties for reasons of his effectiveness as a political activist for a party known as the ‘ABVD’.  It was part of the major political party in India known as the BJP.  The tribunal considered this claim in detail and made findings concerning it.  The tribunal said that on the basis of all the information available to it, it was of the view that the applicant’s claims that there was animosity between a Muslim political party and the BJP, his own party, were not of the kind that could give rise to personal harm amounting to persecution, were exaggerated and implausible and were mere assertions on the applicant’s part. 

7. It also found to be equally implausible his claims that the Kerala State government was influenced by another political party which the tribunal found not to be a locally known party.  It rejected his claim that the police in his district were subject to the influence of a person whom the applicant named. 

8. The tribunal found that on the independent evidence including the Electoral Commission of India’s statistical report, the State government of Kerala was a coalition dominated by the Indian National Congress Party during the years in which the applicant alleged that the conduct occurred which justified his claims.  The tribunal noted that the applicant had not offered any evidence of his membership of the BJP despite his claim that his membership had been renewed to the time of the hearing before it.

9. The tribunal also found the applicant could offer no information about the BJPs activities, philosophies, or what he had protested about, other than a rise in the price of bus tickets.  The tribunal accepted that this did not mean he had not at some stage been a member of the BJP but it did indicate that he was not an activist of the sort who would attract adverse attention from members of opposing political parties.

10. The tribunal rejected all of the applicant’s claims that he had been or would in the future be at risk of harm from supporters or sympathisers of any Muslim political party for reason of his own political affiliation with the BJP. 

11. The tribunal accepted the applicant’s claim that a Hindu relic had been found on his father’s land and that he, his father and other Hindus had proposed that a temple should be built on a particular site.  The tribunal accepted that the temple would require a reconfiguration of the access to a local mosque and that the Muslim community objected to the proposal to build a Hindu temple.  It found that this religious interaction gave rise to some animosity between the two groups leading to threats against the applicant’s father.  The tribunal also accepted that complaints were made to the police who took the leader of the Muslim group into custody while they made further inquiries, but he was later released on bail.

12. It also accepted that harm had befallen the applicant’s family, although not him personally, and that the agents of the harm were in some way connected to the Muslim leader.  But it found that this was a one-off incident and no further ones had occurred since late 2002.  The Tribunal had regard to the fact that the applicant’s father, who was as deeply, if not more, involved in the issue with the Muslim local population than the applicant claimed to be, had himself chosen to remain in the district.  The tribunal noted there were no claims, and the evidence did not suggest, that the applicant’s father had been harmed since late 2002 and that the proposal to build the Hindu temple had not proceeded.

13. The tribunal was satisfied the police took action and the matter proceeded through the proper channels and that it was finished.  It also noted that over the next three and half years the applicant had spent time in various parts of India, including his home, and that no harm had befallen him either in his home town or elsewhere in that period.  It rejected his claims that he and his family had received anonymous telephone calls asking for his whereabouts as mere assertions intended to bolster his claims.

14. The tribunal concluded that on all the evidence before it it did not find the applicant had suffered serious harm, let alone harm amounting to persecution, in the past for a Convention reason and that the chance of any such harm befalling him in the reasonably  foreseeable future was remote.  It then found it was not satisfied that he had a well-founded fear of persecution for a Convention reason and he was thus not entitled to a protection visa.

    THE CLAIM FOR RELIEF

15. I am of the opinion those findings were essentially findings of fact which were open to the tribunal on the material before it.  The applicant sought to tender material before me which he said he had not tendered to the tribunal.  I rejected that tender on the basis that it was not material that could possibly show that the tribunal had committed a jurisdictional error.  He had made a similar application to his Honour, although I am not sure that it was exactly the same material, but his Honour likewise rejected the tender, in my opinion, properly.

16. His Honour characterised the essence of the applicant’s claim before him as a challenge to the findings of fact made by the tribunal, as well as to its conclusion on the merits of the application for review.  I agree. 

17. His Honour summarised the issues agitated before him as involving:

    1.the tribunal’s wrong use of or assessment of country information;

    2.bias by the tribunal;

    3.a failure to conduct a proper review;

    4.a failure to properly inquire;  and

    5.an assumption by the tribunal that Hindus, as the majority religion in India, could not be persecuted.

    As to country information:

18. His Honour relied on the decision of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. This held that the tribunal was entitled to obtain any information it considered to be relevant in the conduct of a review – see s 424(1) of the Migration Act 1958 (Cth). The tribunal in this case had regard to country information as it was entitled to do. I see no error in the way in which it approached that issue.

    As to bias:

19. The Minister identified before his Honour the possibility that a claim made in the application to the court below could involve a suggestion that the tribunal was either actually biased or that a reasonable person could apprehend that it was in the conduct of the hearing. 

20. His Honour noted that there was no transcript of the hearing before the tribunal in evidence. He found that a consideration of the tribunal’s statement of decision and reasons did not indicate that the tribunal had a closed mind or that there was anything to suggest that the conduct of the hearing before it gave rise to any apprehension of bias in accordance with the legal standard for doing so.  I entirely agree.  I reject the suggestion that the tribunal was actually or apparently biased.  From my review of the material in the tribunal’s statement of decision and reasons and what the applicant had raised in argument below or before me it has no foundation.

    As to a failure to conduct a proper review:

21. The complaint the applicant made before his Honour was that the tribunal reached its decision in a ‘hasty and unorderly process’.  Another limb of the claim appears to have been that the tribunal did not refer to every single piece of evidence before it.  Neither of those matters, even if it were made out, is, in my opinion, demonstrative of any jurisdictional error.  The tribunal recorded that the applicant had appeared before it on 3 October 2006 to give evidence.  Its decision was given on 26 October 2006.  The decision appears to be reasoned and considered.  I see no basis for suggesting that the decision was made otherwise than in accordance with law.  The fact that not every single piece of evidence or information before the tribunal was referred to by it is not a jurisdictional error. 

22. Section 430(1) of the Act requires the tribunal to prepare a written statement that sets out its decision on the review, its reasons for the decision, the findings it makes on any material questions of fact and that refers to the evidence or other material on which those findings were made.  As was emphasised in Minister for Immigration and Multicultural Affairs vYusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ, the function of the tribunal under s 430 of the Act is to give its decision and the bases on which it did so.  It need not set out every single matter that was before it or deal with all of those matters.  If it has failed to take into account a material fact or consideration, that will be evident from the material placed before the Court whose jurisdiction is properly invoked to seek constitutional relief.  No such basis was established before his Honour or before me.

    As to the failure to inquire:

23. The tribunal has a duty and function to deal with a claim made to it.  It does not have any particular duty to inquire into matters which are not the subject of claims made by the applicant albeit that its proceedings have been described by the High Court on more than one occasion as inquisitorial in their general character:  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]. In my opinion, the applicant was properly notified by the tribunal that it was not prepared to make a decision in his favour on the papers and therefore it invited him to a hearing. It spent, his Honour noted, almost two and a half hours in the conduct of the hearing on 3 October 2006 and the applicant clearly had a full opportunity to provide to the tribunal such information or arguments in support of his claim on that occasion as he saw fit. I reject this ground as raising any arguable jurisdictional error.

    As to the assumption that Hindus in India were not capable of being persecuted:

24. In my opinion, the tribunal’s findings show that it considered the inter-communal or inter-religious tensions that had occurred in a fair and proper way and came to its own conclusions as to that matter.  It did not exhibit any closed mind or inability to understand the nature of the applicant’s claim or the particular interaction between religious groups involving the proposal to build a temple and its effect on the nearby mosque.  The tribunal did not make assumptions about the place of Hindus in relation to persecution in India. 

25. To the contrary, it found that the religious dispute had given rise to difficulties on both sides of the religious issue.  But it found that that was now a matter that had been resolved and that the applicant could base no claim for a protection visa on it.

    CONCLUSION

26. In my opinion, none of the matters which the applicant raised or sought to raise before his Honour as jurisdictional errors had any substance.  The applicant today submitted that the tribunal did not make all the correct findings about the present position in India and that he did not have enough material to put to the tribunal when he appeared before it and needed more time to give it the further evidence which he now wishes to do. 

27. That is not a ground of jurisdictional error; rather, it is an error of approach on the part of the applicant.  The tribunal did not lead him into it.  On the material before me I see no basis upon which a claim could be established to support any ground that could possibly be argued on an appeal from his Honour’s decision.  In my opinion, it would be entirely futile to allow this hopeless case to be brought as an appeal in this Court.  For these reasons I refuse to grant an extension of time in which the applicant may seek to institute an appeal.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        1 November 2007

The applicant appeared in person:
Solicitor for the Respondent:	B Rayment of Spark Helmore
Date of Hearing:	24 October 2007
Date of Judgment:	24 October 2007