SZKNS v Minister for Immigration and Citizenship

[2007] FCA 1914

FEDERAL COURT OF AUSTRALIA

SZKNS v Minister for Immigration and Citizenship [2007] FCA 1914

SZKNS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1764 OF 2007

EMMETT J

22 NOVEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1764 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	22 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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	NSD1764 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

22 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India and arrived in Australia on 6 July 2006.  On 31 July 2006 he applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (The Act). On 25 September 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa. On 18 October 2006, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 7 March 2007, the Tribunal notified the appellant that it had affirmed the delegate’s decision. The appellant then commenced a proceeding in the Federal Magistrates Court on 23 April 2007 seeking Constitutional writ review of the Tribunal’s decision. The appellant filed an amended application on 3 July 2007.

2. On 14 August 2007, the Federal Magistrates Court dismissed the application for judicial review.  On 31 August 2007 the appellant filed a notice of appeal from the orders of the Federal Magistrates Court.  On the hearing of the appeal today, the appellant appeared without legal representation, although he had the assistance of an interpreter.  Before dealing with the grounds of review to the Federal Magistrates Court and the grounds of appeal before this Court, it is necessary to say something about the findings of the Tribunal and its reasons for those findings. 

3. The Tribunal was satisfied that the appellant lived in Tamil Nadu and that he speaks Tamil and a little English.  The Tribunal also accepted that the appellant is a Muslim.  The Tribunal found that the appellant inherited his father’s grocery store and coconut farm when he was about 16 years old and that, with the help of his grandfather, sold the grocery business and bought a second farm.  He also operated a business in the local market.

4. The appellant became aware of theft of his coconuts from his second farm.  In January 2005 he went with friends to observe his workers at night and took photos of them stealing his coconuts.  He reported that to the police.  The police did not take any action.  They said that there was insufficient evidence of the theft.  The Tribunal accepted that the appellant later became involved in a confrontation with his workers and that he was hit on the head with a stick by one worker during the confrontation.  That required hospitalisation for some two days.

5. The Tribunal also found that, later in May 2006, the appellant, together with 60 to 65 Communist Party supporters, confronted the workers at the farm in an effort to stop the ongoing thefts of coconuts.  At the farm there were members of the Rashtriya Swayemsevak Sangh (the RSS).  Another confrontation occurred with the workers, which resulted in the death by stabbing of one of the Communist Party members.  The police investigated the death and made several arrests.  However, ultimately the police released the suspects as there was insufficient evidence to identify the attacker.

6. The appellant claimed that he was responsible for the conversion of 4 to 5 Hindu families to Islam and that he is now targeted by the RSS because he is a Muslim.  He also claimed that his farm workers are Hindu, and are members of the RSS and that they are attempting to take away his wealth because he is a Muslim.  The appellant claimed that the RSS are now threatening him because he converted Hindu families and is, therefore, seen as an enemy of the RSS.  He also claimed that the RSS are persecuting him as a member of the Communist Party.  The Tribunal summarised the matter by saying that the appellant claimed that he is seen as an enemy of the RSS, as having converted Hindu families to Islam and because of his speaking out against the RSS at Communist Party meetings. The Tribunal found that the appellant fears persecution by the RSS because of his religious and political affiliations and activities. 

7. The Tribunal considered the issue of whether the harm feared by him amounted to “serious harm” within the meaning at s 91R of the Act.  The appellant stated that he believed the RSS would engineer an accident in which he would be killed or seriously injured.  He cited an incident when he was knocked over by a bike.  However, without any corroboration, the Tribunal did not accept that that was done deliberately, or by the RSS as the appellant claimed.  The Tribunal found that the other threats that the appellant had received to date have only ever been oral threats.  Those threats were vague and unspecific and had not been acted upon, despite the fact that the appellant has been associated with Hindus and members of the RSS in his village for some years.

8. The Tribunal found that the harm the appellant may face on return to his local area would amount to serious harm and that there is a real chance that the RSS would seek to inflict such harm upon him. The Tribunal was satisfied that there was a real chance that the RSS would seek to inflict serious harm for an essential and significant reason of religion and political activity. 

9. However, the Tribunal then considered the question of whether or not the appellant would be able to access adequate state protection if he returned to Tamil Nadu.  The Tribunal referred to the evidence by the appellant about his reporting the theft of coconuts to the police and the police activity in relation to the death of the person killed at the farm.  The Tribunal considered that, because the police in fact responded to both incidents, that was evidence that there would, in fact, be state protection available.  The reason why the police took no further action was lack of evidence.  The Tribunal considered that the appellant had not provided any independent information as to lack of state protection in Tamil Nadu, in relation either to Muslims or Communist Party members.  The Tribunal was unable to find any information to indicate that state protection would be withheld if the appellant faced harm for a Convention reason.  The Tribunal, therefore, concluded that the appellant would have access to adequate state protection against harm from the RSS.

10. The Tribunal found that the information available to it suggests that Indians are free to move within the country, with the exception of two states.  The independent country information available to the Tribunal indicates that some Indian states have a significant Muslim population.  Since the change of government in 2004 there has been a marked improvement in conditions for freedom of religion in India.  The Bharatiya Janata Party (BJP) is no longer in power in India and the current government is working towards religious tolerance.  The Tribunal, therefore, did not accept that all Muslims in India face a real chance of persecution for reasons of their religion on the basis of sporadic accounts of communal violence in different parts of the country. 

11. The Tribunal stated that the relevant standard is not a perfect standard.  The state is not required to provide a guarantee of protection, rather it is required to provide an appropriate standard of protection, including a reasonably effective and impartial police force.  The Tribunal found that the appellant would be afforded adequate state protection, according to that standard.  The Tribunal concluded, therefore, that the appellant does not have a well‑founded fear of persecution in Tamil Nadu and, therefore, does not have well-founded fear of persecution in relation to India as a whole for reasons of his religion, or political opinion.

12. Nevertheless, the Tribunal also considered the issue of whether the appellant could relocate to another part of India, to avoid persecution by the RSS or by the BJP.  Based on the county information available to it, the Tribunal did not accept that language difficulties on the part of the appellant would be a real barrier to relocation in other areas of India where Tamil is a major language.  The Tribunal considered that the appellant’s evidence indicated that he and his family have financial resources in India, which would provide him with sufficient financial resources to relocate within India.  The Tribunal observed that the appellant does not have dependants who require him to remain in Tamil Nadu, as evidenced by the fact that he came to Australia without any dependents.  The Tribunal, therefore, concluded that it would be reasonable, having regard to the appellant’s circumstances, for him to relocate to one of the number of other areas in India, in order to avoid persecution.

13. In his original application to the Federal Magistrates Court the appellant raised three grounds as follows, which may be summarised as follows:

    (1)A breach of the laws of natural justice occurred, insofar as the Tribunal failed to comply with s 424A of the Act.

    (2)The Tribunal left out individual evidence of the appellant’s claim and failed to look at his claim as a whole. 

    (3)The Tribunal failed to give natural justice. 

14. In his amended application several grounds were mentioned as follows:

    “(1)That the decision of [the Tribunal] was effected [sic] by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to [the appellant’s] claims.

    (2)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

    Particular of Grounds

    a.The Tribunal did not consider [the appellant] who had been under immense and intimidating pressure from RSS and BJP members because of his involvement with Communist party and conversion of Hindu families to Islam.

    b.In relation to above the Tribunal did not consider [the appellant’s] claim that RSS and BJP members will kill him if he returns to India.

    (3)The Tribunal exceeds its jurisdictional or constructively failed to exercise its jurisdiction, or denied my procedural fairness in that the Tribunal failed to investigate [the appellant’s] genuine claims with the requirement of Migration Act 1958.

    (4)The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against [the appellant’s] case in the final out come.  The Tribunal used the all information for matter of reasoning and evaluation of [the appellant’s] case for protection visa.

    (5)The RRT member emphasised on some irrelevant questions at the hearing and ignored [the appellant’s] sexuality that put [his] life in danger.  In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.

    (6)The Tribunal applied the wrong test.  The Tribunal left out individual elements of [the appellant’s] claims and tested whether they individually amounted to persecution, rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.

    (7)The Tribunal applied the wrong test, by requiring independent evidence of the fact that the Tribunal would accept the claim being made by [the appellant] the Tribunal was, in fact, placing to [sic] high an onus of proof an [sic] the applicant and failing to give the applicant the benefit of the doubt..”

15. The Federal Magistrates Court addressed the grounds in the original application as well as the grounds in the amended application. 

16. In his written submission to the Federal Magistrates Court, the appellant asserted that the Tribunal failed to have regard to s 91R.  As I have said, the Tribunal clearly considered whether relocation would expose the appellant to serious harm, but concluded that, while there was a threat of serious harm, there was adequate state protection.

17. In relation to the alleged failure to comply with s 424A of the Act, the primary judge observed that the Tribunal relied on country information in reaching its conclusion.  Therefore, there was no failure to comply with s 424A, by reason of s 424A(3)(a).

18. In relation to the second ground in the original application, the Federal Magistrates Court observed that the appellant failed to point to any part of his claim that had not been dealt with by the Tribunal. 

19. The third ground simply asserts a breach of natural justice without any particulars.  In so far as there was an allegation of a denial of procedural fairness, the Federal Magistrates Court had regard to the terms of a letter sent to the appellant pursuant to s 425 on 15 November 2006.  The primary judge observed that the issues that were determinative of the appellant’s claims, namely, the adequacy of state protection and the reasonableness of relocation, were clearly discussed with the appellant at the hearing before the Tribunal.  Relocation had been an issue before the delegate.  His Honour concluded, therefore, that there was no breach of s 425, since the determinative issues were discussed at the hearing and the Tribunal’s findings were open to it on the material before it. 

20. In relation to the grounds in the amended application, the Federal Magistrates Court observed that the complaint, that the Tribunal had not taken into account integers central to his claim, was completely without foundation.  The Tribunal did, in fact, consider the claims that the appellant was subject to pressure from the RSS and BJP members.  The Tribunal referred to the claims by the appellant that RSS and BJP members would kill him if he returned to India, but found that he would be afforded adequate state protection in relation to that feared harm in Tamil Nadu.

21. The third ground alleging a failure to investigate the applicant’s claims was rejected as being without foundation.  The Tribunal made findings of fact in respect of which there was no error.

22. In relation to the fourth ground the Tribunal is not bound by the rules of evidence in conducting a review and it may get information that it considers relevant from such source as it sees fit.  There can be no objection in principle to the Tribunal relying on country information.  No error of law or jurisdictional error is established in relation to the appellant’s complaint about the way in which the Tribunal used country information. 

23. The fifth ground refers to the applicant’s sexuality.  No such claim was ever made, either to the delegate or to the Tribunal.  A fortiori there can be no error on the part of the Tribunal in failing to have regard to relevant material in relation to the question of the appellant’s sexuality. 

24. Grounds 6 and 7 refer to the Tribunal having applied the wrong test.  Both seem to be complaints about the factual findings made, by the Tribunal.  There was no error on the part of the Tribunal in making the factual findings that it made, which were open to it on the material before it.  That is the conclusion that the Federal Magistrates Court reached.  In so far as the appellant complained about failure to notify him of country information that might have been part of the reason for the Tribunal’s decision, the Federal Magistrates Court referred to s 424A(3)(a).  It was satisfied, therefore, that there was no failure to comply with s 424A of the Act.

25. The grounds of appeal in the appellant’s notice of appeal of 31 August 2007 are substantially without particulars.  Many of the grounds repeat the grounds in the amended application of the Federal Magistrates Court.  The first four grounds are completely without particulars.  They generally assert the following:

    1.The Federal Magistrates Court failed to find error of law or jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903 (Cth).

    2.The Federal Magistrates Court dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal. 

    3.The Federal Magistrates Court made a legal, factual and jurisdictional error in applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs 52 FCR 437.

    4.The Federal Magistrates Court failed to take consideration that the Tribunal decision was unjust.  It was made without taking into account the full gravity of the appellant’s circumstances.

    Nothing in the appellant’s written submissions was addressed to those matters.  In the absence of further particulars, there is no substance in any of the grounds.

26. The fifth ground of appeal is that the Tribunal ignored the appellant’s political background.  That can probably be taken as an assertion that the Federal Magistrates Court erred in failing to find that the Tribunal ignored the appellant’s political background.  However, it is quite apparent that there is simply no substance in that assertion.  The Tribunal had full regard to the appellant’s political background and made favourable findings in that regard. 

27. The sixth ground refers to “Muin’s” case but gives no particulars and is completely without substance.  Next, the appellant asserts that the Federal Magistrates Court did not consider his amended application.  That is quite clearly wrong.  The Federal Magistrates Court set out in some detail the claims that were made in the amended application and dealt with them.

28. Then, the appellant asserts that the Tribunal did not take into account relevant considerations or “integers”.  No particulars are provided.

29. Next there is a ground that the Tribunal failed to carry out its review function, with an assertion that the Tribunal did not consider that the appellant had been under immense and intimidating pressure from the RSS and BJP members and did not consider his claim that he would be harmed if he returned to India.  Those assertions are, of course, completely without foundation.  The Tribunal gave detailed consideration to the claims and made favourable findings in relation to those claims.

30. Finally, there is a repetition that the Tribunal applied the wrong test.  That complaint was answered by the Federal Magistrates Court, as I have said above.

31. In his written submissions, the appellant referred to grounds that did not appear in his notice of appeal.  No leave has been sought to amend the notice of appeal.  However, having regard to the fact that the appellant has appeared without legal representation, I shall make reference to the additional matters raised in his written submissions.

32. First, the appellant asserts that the rejection of his oral evidence in relation to major issues demonstrates actual bias.  That statement is completely without foundation in the absence of some further particulars.

33. Next, the appellant claimed that the Tribunal failed to consider the test whether the applicant would suffer serious harm within s 91R if he were asked to relocate to India.  The Tribunal referred to the terms of s 91R in its reasons and made findings that were, for the most part, favourable to the appellant in that regard.

1. Next, it is asserted that the Tribunal exceeded its jurisdiction by failing to take into consideration the threat to the appellant’s life and the impact on him of his religious and political background.  Once again, that is an assertion that has no substance whatsoever, having regard to the attention that the Tribunal gave to those matters.

2. Next, the appellant refers to the ground concerning the Tribunal’s use of country information.  I have already dealt with that ground in dealing with the reasons of the Federal Magistrates Court. 

3. The written submissions also refer, again, to the assertion that the Tribunal applied the wrong test.  I have just dealt with those contentions already. 

4. The final two grounds are also repetitious of the grounds contained in the amended application. They do no more than repeat the grounds.

5. Finally, in his written submission, the appellant asserted that the Tribunal failed to have regarded to the four key elements required to satisfy the Convention definition of a “refugee”.  It is without foundation to assert that the Tribunal failed to do so.  That is precisely what it did do.

6. I am unable to discern any error on the part of the Federal Magistrates Court in dealing with the grounds of review in the original application, in the amended application and in the written submissions made to it.  Further, there is no substance in the notice of appeal of 31 August 2007 or in the appellant’s written submissions.  I am not persuaded that there was any error on the part of the Federal Magistrates Court or that there was jurisdictional error on the part of the Tribunal.  It follows that the appeal must be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        5 December 2007

The Appellant appeared in person.
Counsel for the First Respondent:	J Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	22 November 2007
Date of Judgment:	22 November 2007