SZKKY v Minister for Immigration and Citizenship

[2007] FCA 1772

FEDERAL COURT OF AUSTRALIA

SZKKY v Minister for Immigration and Citizenship
[2007] FCA 1772

SZKKY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1382 OF 2007

RARES J
25 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1382 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	25 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

3.Liberty to any party to restore the matter to the list in respect of any application for the payment of the amount fixed for costs by instalments on seven days’ notice, returnable before a registrar.

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 1382 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	25 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing the applicant’s claim for constitutional writ relief:  SZKKY v Minister for Immigration [2007] FMCA 1043. I adjourned the hearing from yesterday for the reasons set out in the appendix to these reasons. The appellant and his wife arrived in Australia in September 2006. They are citizens of India, originally coming from Kerala State. In October 2006, they applied for protection visas which a delegate of the first respondent refused in November 2006. They applied for a review of the decision to the Refugee Review Tribunal. The tribunal affirmed the decisions not to grant them protection visas in February 2007.

2. In essence, the wife’s application was based on her husband’s claim.  Only the husband applied for constitutional writ relief to the Federal Magistrates Court.  He is the only appellant in this Court.

3. In his application for a protection visa, the appellant claimed that from the days of his youth he was an active member of the Indian National Congress (INC) Party and in later years he worked for that party.  He claimed that in 1993 activists from the Communist CPM Party attacked INC activists in an incident in which he was injured and admitted to hospital.  He spent a significant time recuperating in hospital from those injuries.  He then claimed to have returned to active politics and experienced no problems for the succeeding four and a half years until 1998.  Then workers in a market at which the INC and CPM unions were rivals for the support of persons working there had a fight. The quarrel arose between the rival unions concerning the loading and unloading of fish at the market.  The police intervened and the next day the appellant and his father were violently attacked by armed persons at their house.  His father was paralysed as a result of the attack and the appellant was severely injured.  In July 2002 the appellant claimed to have received death threats after being falsely accused of responsibility for injuries to a rival in the CPM who had been a prominent figure in the incident in 1993 of which the appellant complained.

4. After this, the appellant went to Kuwait in early 2003 to work.  He returned to India in March 2005 on leave from his Kuwaiti job to marry his wife.  The marriage occurred in early May 2005.  He did not experience any problems until early July 2005 when the political rival, whose injuries in 2002 had led to problems, died.  There was a question as to whether it was a suicide or not.  The appellant returned to Kuwait six weeks early due to his fear that there may be retribution from CPM members over the death of that rival.

5. After some period in Kuwait, his employer asked him to go to work in Iraq for it, but he was scared to do so because of a fear of bomb blasts and kidnapping of foreigners in that country.  He resigned and returned to India in mid 2006.  About a week after he returned, he claimed that he had been followed by two men at night.  He told the police of this fear, but after that he was very worried and concerned for himself and his family.  He claimed not to want to return to Kuwait and to have been advised by an INC member, who was his mentor, that he should leave the country.  When he went to Madras to arrange for his travel, he claimed that ‘anti-social elements’ threw stones at his home and broke windows at night time, abusing his parents.  Once his passports were ready, he claimed that he and his wife arranged to leave for Australia.

6. The tribunal found that the appellant’s claims indicated that his fear of persecution was at least in part because of his membership of a particular social group, namely the INC, and/or his political opinion.  It considered his claim that the police and other state authorities were unwilling or unable to protect him from the persecution he feared because of their corrupt connections with politicians and criminal elements.  The tribunal also noted that, more generally, the appellant had claimed that police protection was inadequate.

7. The tribunal found that the INC was the then current ruling party in the national Indian government and was the ruling party in several state governments.  It found that the INC had been the ruling party in the appellant’s home state of Kerala until the May 2006 election, when a coalition government was formed which included the CPM party.  The tribunal found that despite its loss of office, the INC party retained a significant number of seats in the Kerala State Parliament.  The tribunal also referred to independent country advice that Kerala is a law-abiding state where legal recourse was available to those who felt threatened and persecuted, and that supporters of registered parties in India who were subjected to political persecution from rival political parties or other agents generally had recourse through the Indian legal system.

8. The tribunal did not accept that the appellant was unable to avail himself of the protection of the relevant authorities of India, including the police.  It noted that he had claimed that he had strong political connections with one of the most powerful political parties in India which was, at that time, the ruling party in the national government and several State governments, other than Kerala.  Drawing on the independent country information, the tribunal found that the appellant’s claim to have political connections and beliefs would, at the very least, not hinder his ability to avail himself of the protection of the police and other relevant authorities in India.

9. The tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.  It found that he was able to avail himself of the protection of India.  Accordingly it affirmed the delegate’s decision to refuse a protection visa to each applicant before it.  His Honour reviewed the evidence and distilled the essence of the application for constitutional writ relief as follows:

   (1)The appellant sought to challenge or review findings of fact made by the tribunal.

   (2)The tribunal was biased.

   REVIEWING THE TRIBUNAL’S FINDINGS OF FACT

10. His Honour correctly said that the Court was not able to conduct a review of the merits of the appellant’s case or to engage in fresh fact finding.

    THE QUESTION OF BIAS

11. His Honour noted that no evidence had been tendered by the appellant upon which that claim was based.  He found that neither actual nor apprehended bias had been established on the material before him.  His Honour accordingly dismissed the application.

    THE APPEAL

12. The notice of appeal to this Court has one ground, namely that his Honour erred in failing to find that the tribunal was biased.

13. The appellant, who appeared for himself with the assistance of his wife today, put to me that his application had not been properly considered because he had suffered physical and mental harassment in India, including the scarring from the wounds he had suffered in one of the attacks.  He argued that in practice he could not get protection in India from those who had attacked him in the past and did not know why the tribunal had not given proper consideration to his case.  He informed me that his father had passed away as a result of the previous attack on him and that under these conditions it was very dangerous, he claimed, to return to India.  In substance, the appellant’s argument was that I should find he is a refugee, but that is not something which I have jurisdiction to do.  In essence, his complaint is that the tribunal came to an erroneous conclusion that he would be able to avail himself of protection by the authorities in India.  In the way in which he presented his argument, I think it is fair to say that the allegation of bias was, in substance, made by him on the basis that had his story been accepted, the tribunal should have found what he said entitled him to a protection visa.

14. The appellant has not demonstrated that his Honour made any error in rejecting all of his contentions below.  In essence, the appellant has sought again in this Court to have a merits review of the facts of his case.  He has not identified any jurisdictional error which the tribunal made in coming to its decision to affirm the decision that he should not be granted a protection visa.

15. I am completely satisfied that there is no substance in the allegation of bias, whether it is treated as one of apprehended or actual bias.

16. I have reviewed the material in the appeal papers independently with a view to determining whether there was any argument that could be advanced on behalf of the appellant in support of the appeal and have come to the conclusion that there is nothing that would assist him.

17. For these reasons I would dismiss the appeal.

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

Associate:

Dated:        16 November 2007

The appellant appeared in person:
Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	25 October 2007
Date of Judgment:	25 October 2007

APPENDIX

1. In this matter the proceedings were listed for hearing by the Court today and a notice of listing was posted by the Court to the appellant at his address in Granville on or about 27 September 2007 informing him that the matter was listed for hearing today at 2.15pm.  After there was no appearance by the appellant when I called the matter for hearing earlier this afternoon, I requested that the solicitor for the first respondent communicate on the telephone numbers which the appellant had made available. 

2. I have been informed from the bar table that contact was made with the appellant’s wife, who said that while the appellant had received earlier letters dealing with the preliminaries of the appeal from the Court and from the solicitor for the first respondent’s firm he was not aware that the matter had been listed for hearing today. The Minister sought to have the matter dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). The appellant’s wife however did inform the solicitor of the Minister that she would be available tomorrow for a hearing. Whether or not the appellant is, I think it is preferable in the circumstances to adjourn the matter until tomorrow and to hear it then.

3. I note that the solicitor for the Minister is involved in a further hearing before me which is listed at 10.15am tomorrow.  In all the circumstances and notwithstanding the additional costs burden on the Minister it seems to me that I should adjourn the matter until 10.15am tomorrow so as to give the appellant an opportunity to present a case, rather than run the risk that the dismissal of the proceedings for default of an appearance will once again occasion an application that the matter be re-listed, with the further expense and inconvenience to the administration of justice that that is likely to entail.

4. In those circumstances I propose to adjourn the hearing till 10.15am tomorrow and to order that the appellant pay the costs thrown away by the adjournment in any event.   I will direct that my associate notify or attempt to notify the appellant’s wife of the adjournment.  I am grateful to the first respondent for his preparedness to accept the course which I consider to be appropriate notwithstanding the inconvenience it causes.