SZKQB v Minister for Immigration and Citizenship

[2008] FCA 883

FEDERAL COURT OF AUSTRALIA

SZKQB v Minister for Immigration and Citizenship
[2008] FCA 883

SZKQB, SZKQC and SZKQD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 159 OF 2008

RARES J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 159 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKQB
First Appellant

SZKQC
Second Appellant

SZKQD
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

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 159 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKQB
First Appellant

SZKQC
Second Appellant

SZKQD
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court dismissing the appellant’s application for constitutional writ relief against a decision of the Refugee Review Tribunal affirming decisions not to grant the appellants protection visas:  SZKQB v Minister for Immigration [2008] FMCA 171.

2. The first appellant told me that he was representing himself and his wife and son, who are the second and third appellants.  The wife and son relied upon the membership of the first appellant’s family unit as being the basis on which they were entitled to refugee status and made no separate claims.  The first appellant had claimed, in his application considered by the delegate, to have been targeted by opposition party members due to his support for the Bhartiya Janta Party (“BJP”) in India, of which country the appellants are citizens. 

3. The delegate found that the first appellant had provided no evidence to support his claim of membership of any political party and had not provided any details of political activities he had been involved in.  Accordingly, the delegate was not satisfied that he had been actively involved in politics or was a member of the BJP.  In those circumstances the delegate was not satisfied that the first appellant was at risk of persecution because of his political activities.  The delegate also rejected the first appellant’s claims that his business had been set on fire and that he had been attacked physically three times.

4. The delegate said that no detailed information such as dates and place of any such attacks had been provided by the first appellant, nor had he provided evidence such as medical certificates, hospital records or copies of complaints lodged with the police to support his claims.  The delegate said that he had stated in his application that he did not know why he had been targeted when other people were also working for the party.  Last, the delegate noted that, regardless of the veracity of the appellant’s claims to have been persecuted on the grounds of his political opinion, he would be able to relocate to a safe place either elsewhere in Gujarat, the State in which he lived, or elsewhere within India.  The delegate noted that the first appellant had successfully run a business for many years and had travelled to Australia and Europe.  He was a Hindu, a religious group which made up 80 per cent of the Indian population, and would therefore be able to relocate within India without encountering religious barriers.

   APPLICATION TO THE TRIBUNAL

5. The appellants then sought review of the decision of the delegate to refuse them protection visas by applying to the tribunal.  The tribunal invited the appellants to a hearing on 11 April 2007.  On the day before the hearing, the tribunal telephoned the first appellant and he advised the tribunal that he would attend the hearing, requesting a Gujarati interpreter.  He sent a fax on the same day saying that he wished to give oral evidence.  However, on the day of the hearing the first appellant did not attend the hearing or contact the tribunal to explain his failure to attend.

   THE TRIBUNAL’S DECISION

6. The tribunal decided, as it was entitled to do under s 426A(1) of the Migration Act 1958 (Cth), to make a decision on the review without taking any further action to allow or enable the appellants to appear before it. The tribunal reviewed the first appellant’s claims, noting that his wife and son had no individual claims of their own.

7. The tribunal said that it had advised the appellants that it was unable to make a favourable decision on the information which they had provided to it, and which was in the Departmental file it had reviewed prior to issuing its invitation to attend a hearing.  It noted that the appellants had not given the tribunal the opportunity to explore aspects of the first appellant’s claims with him, and considered that a number of questions it thought relevant had been left unanswered.  It said that the core of the first appellant’s claims concerned his political profile but that it would have wanted to satisfy itself that the first appellant was, indeed, a militant of the BJP as he had claimed.

8. The tribunal noted that the first appellant claimed to have been persecuted by Muslims.  But the tribunal noted that, according to reliable information publicly available, the overwhelming majority of the people in his State were Hindu and the party of which he claimed membership, the BJP, had won almost 50% of the votes in the most recent State election and a majority of the seats in that State in the most recent national election.  The tribunal said that in those circumstances it would have wanted to ask the first appellant why he could not avail himself of the protection of the police forces which are controlled by a State government dominated by his own party.

9. Although the tribunal noted that the appellant had made a claim once to have complained to police, he had not indicated what had happened to that complaint and had not provided any copy of the report of the complaint.  Additionally the tribunal noted that even if the first appellant had been able to satisfy it on those matters it would have wanted to ask the appellant why he could not have obtained the relief he felt he needed by relocating elsewhere in India.  It said that because it was unable to satisfy itself on any of those matters, it was not satisfied that the events the first appellant had described in his application for a protection visa had in fact taken place.

10. Moreover, it was not satisfied that there was a real chance that such events or anything like them would occur in the future, in the event that the first appellant were to return to India.  Accordingly the tribunal did not accept that there was a real chance that the first appellant would suffer harm amounting to persecution in India for reasons of his political opinion or for any other Convention reason were he to return.  It was therefore not satisfied that the first appellant was a person to whom Australia had protection obligations under the Refugees Convention and that, since his claim failed, those of his wife and son also failed.

    PROCEEDINGS BEFORE THE TRIAL JUDGE

11. The appellants sought relief against that decision in the Federal Magistrates Court.  His Honour noted that the grounds of the amended application before him alleged that:

    ·the tribunal had not made its decision in good faith and in accordance with the rules of natural justice;

    ·the appellants had attended the hearing and given oral evidence to the department (sic);

    ·the tribunal had applied the wrong test on the issue of relocation;  and

    ·the tribunal failed to give adequate or proper reasons or to consider all the claims and issues the appellants had put forward.

12. His Honour rejected each of those claims for reasons with which I agree.  In particular, his Honour rejected the allegation that the first appellant had attended the hearing, which he said was contradicted by the express terms of the tribunal’s decision record.  He noted that the first appellant had put no evidence before the court to suggest that the decision record was incorrect.

    THIS APPEAL

13. The notice of appeal had two grounds:

    (1)the trial judge had failed to hold that the tribunal had made a jurisdictional error in that it had adopted a “harsh” approach to the issue of well-founded fear and had misapplied that criterion to the assessment of their claims;

    (2)the trial judge had failed to hold that the appellants had been denied natural justice or procedural fairness because the tribunal had not given them another chance to appear at a hearing.  This ground alleged that the first appellant had not received any letter from his migration agent about the date of the hearing and that he was willing to attend the hearing and present oral evidence but failed to attend because he never received any information about the date of the hearing.

14. The appellants filed written submissions in support of their appeal.  In those written submissions the appellants said:

    “The appellants accept that they were given chance to present there case before the Tribunal.  The first appellant (main) had intention to attend the hearing and because of that he sent fax to the Tribunal and informed the Tribunal that he has intention to attend the hearing.  But the Tribunal did not give any weight to the fax and did not adjourn this matter to be heard on any other day.  The Tribunal made decision without giving any further chance to clarify some of the issues on which the Tribunal found that the appellant has no case for the protection visa.” (sic)

15. The appellants’ written submissions also argued that the tribunal knew that the appellants lived in the countryside and that coming from there to Sydney was costly and difficult.  However, the place appointed by the tribunal for the hearing was the Griffith Police Station in Griffith, where the appellants lived, or at least that was their postal address for receipt of correspondence.  Today, I asked the first appellant whether the tribunal had made some mistake.  He told me that it was his mistake.  I asked him why he did not appear at the tribunal and he said he was busy and that he was working and could not attend the hearing.

16. In my opinion this reveals that there is no possible basis upon which the tribunal’s determination that it was entitled to proceed pursuant to s 426A(1) of the Act could have been a jurisdictional error. The appellants had been invited to attend a hearing in Griffith, they had communicated with the tribunal on the day before the hearing asking for a Gujarati interpreter and said that they would be appearing. They had sent a confirmatory fax to the tribunal dated 10 April 2007 saying that they would come. They did not seek to inform the tribunal of any reason why they did not appear at the hearing or could not appear on the day. In those circumstances there could be no possible jurisdictional error or denial of procedural fairness in the tribunal then proceeding to determine the matter without affording any further opportunity for the appellants to appear before it to give evidence or present arguments.

17. I am satisfied that the tribunal gave due consideration to the appellants’ claims and I am unable to see any jurisdictional error in its assessment of its lack of satisfaction that Australia owed protection obligations to them on the basis of the material they had chosen to put before the tribunal.  In particular, I see no error in the way in which the tribunal made its assessment of the appellants’ claims.  The tribunal simply was not satisfied by what the appellants had put forward.

18. It did not misapply the law as to what a well-founded fear of persecution was.  On the material put before it it was unable to find that it was satisfied that the first appellant had any fear which amounted to a well-founded fear of persecution for a Convention reason.  Nor was the tribunal obliged to afford the appellants a further opportunity to appear before it.

    CONCLUSION

19. In those circumstances the appeal must fail.  No error in the way in which the trial judge reasoned has been demonstrated, nor has there been any demonstration of any other error on the part of the tribunal.  On the basis of the affidavit of Nicola Johnson sworn today, I am satisfied that the Minister has incurred costs in this matter exceeding $2,900 and that it would be appropriate to fix the amount of costs as applied for by the Minister in the sum of $2,200. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        12 June 2008

The First Appellant:	Appeared in person
Counsel for the First Respondent:	T Reilly
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008