SZLOC v Minister for Immigration and Citizenship

[2008] FCA 1662

FEDERAL COURT OF AUSTRALIA

SZLOC v Minister for Immigration and Citizenship [2008] FCA 1662

Migration Act 1958 (Cth)

SZLOC v Minister for Immigration and Citizenship [2008] FMCA 930 referred to

SZLOC v MINISTER FOR IMMIGRAITON AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1173 OF 2008

TRACEY J

14 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1173 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOC
Appellant

AND:

MINISTER FOR IMMIGRAITON AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	14 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 1173 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOC
Appellant

AND:

MINISTER FOR IMMIGRAITON AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	14 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 11 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 2 October 2007: see SZLOC v Minister for Immigration and Citizenship [2008] FMCA 930. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of India, from the district of Kerala, who entered Australia on 10 April 2007.  On 19 April 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 31 May 2007.  On 27 June 2007 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed fear of persecution on the basis of his political opinion.  The appellant claimed that he was involved in the Student Federation of India (SFI), the student wing of the Communist Party (Marxist) (“CP(M)”) for a number of years. He claimed that the SFI comes under the Democratic Youth Federation of India which is part of the CP(M).  The appellant claimed that he faced serious harassment on a number of occasions from the Akhil Bharatiya Vidyarthi Parishad  which is the student wing of the Bharatiya Janata Party.  The appellant provided the Tribunal with two membership “cards” for the SFI.  He claimed that he erected posters, assisted with doorknocking campaigns for the SFI and stood for a student representative election while in Year 8 at high school.

4. The appellant claimed that he and/or his family had been attacked in December 1995 and in 2006.  He said that in the 2006 attack his right leg was injured and showed the Tribunal a scar on his knee.  He provided the Tribunal with a doctor’s certificate which referred to “traumatic injuries – both legs from 5.2 – 06 to 25.2 – 06.”

   REFUGEE REVIEW TRIBUNAL

5. The Tribunal did not accept that the appellant was a witness of truth.  The Tribunal found that the appellant’s claims that he was a member of the SFI were unsupported.  The Tribunal said that it could not rely on the membership documents because the documents were incomplete.  The appellant had presented two consecutive receipts for memberships covering one period and he gave evidence that the party membership documents were not originals but had been completed by persons assisting him with his protection visa application.

6. The Tribunal found that the appellant’s claims about being a member of the SFI and DYFI were vague, contradictory and unimpressive.  The Tribunal was not satisfied with the appellant’s explanation as to why he was targeted amongst his colleagues, or why he was unable to live in Kerala or any where else in India.  The Tribunal did not accept that he had developed any significant commitment to student politics

7. The Tribunal found that the doctor’s certificate attested to alleged injuries at an alleged time.  The appellant’s oral evidence as to the date of the incident did not correspond with the date of the certificate.  The Tribunal took into account the appellant’s scar, but found that the appellant’s oral evidence could not be relied upon and was therefore not satisfied that the appellant ever suffered any traumatic or serious injuries.

8. The Tribunal was not satisfied that the appellant faced a real chance of persecution for reasons recognised under the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees) should he return to India, and affirmed the delegate’s decision not to grant the appellant a protection visa.

   FEDERAL MAGISTRATES COURT

9. The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 26 October 2007 but relied on an amended application filed on 29 January 2008.  The amended application contained seven grounds:

   “1.The Tribunal failed to accord procedural fairness under s424 of the Migration Act 1958 as considered by the full Federal Court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied in Independent evidence as to prevalence of claim about political persecution. On the basis of that the Tribunal was not satisfied as to the genuineness of my claims nor of the genuineness of my statements about my harassment of systematic nature.

   2.That the decision of the refugee review tribunal was affected by jurisdiction error in that the Tribunal dud not take in to account certain relevant considerations or ‘integers’ central to the applicant’s claims, because I spent two hours questioned without a break and felt stressed and intimidated.

   3.The Tribunal thereby failed to carry out it’s review function and to exercise its jurisdiction.

   4.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act( which is a mandatory jurisdictional requirement of the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

   5.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.  The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa.  The Tribunal was preoccupied and did not have a fresh look.  The Tribunal also failed to consider the Amnesty International country information.

   6.The Tribunal failed to ask question that it was, in circumstances of this case, legally required to ask.

   7.The Refugee Review Tribunal a failed to act that the applicants satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention.  To go further the Tribunal failed to see that the applicants satisfy the four key elements that are required to satisfy the Convention definition.  The applicants state that the Tribunal refers to four key elements and since they satisfy them they entitled to protect visa.”

10. The Federal Magistrate considered the Full Court decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 but concluded that the issues considered in that case were different from those which arose in the matter before him. The Federal Magistrate found that, as the Tribunal had rejected the appellant’s claim of persecution, the Tribunal was not required to make a finding on the adequacy of state protection in India and did not make such a finding.

11. The Federal Magistrate summarised grounds two and three as raising the following issues:

    ·    Whether the Tribunal did not take into account certain relevant “integers” central to the applicant’s claims; and

    ·    Whether the applicant was questioned without a break for two hours during the hearing and felt continually stressed.

    The Federal Magistrate noted that the Tribunal’s purported failure to consider all of the appellant’s claims was not particularised, nor had the appellant provided any submissions which identified which materials or claims had been ignored.  The Federal Magistrate reviewed the material that the appellant tendered and oral evidence which he gave to the delegate and the Tribunal.  It was not apparent that any of the issues he raised had not been addressed by the Tribunal in its decision.  The Federal Magistrate found that, on a fair reading of the courtbook and the Tribunal’s decision, it appeared that all of the issues and claims raised by the appellant had been addressed.  In relation to the issue of the period of questioning at the Tribunal hearing, while the Federal Magistrate accepted that, during an inquisitional hearing where substantial parts of his claims were not accepted, it was likely that the appellant would experience stress, there was no evidence supporting the claim that the Tribunal member had been intimidating or had acted inappropriately.

12. The Federal Magistrate dealt with the fourth and seventh grounds together. The Federal Magistrate noted that the Tribunal rejected the appellant’s claims of persecution and that it was not satisfied that the appellant faced a real chance of Convention-related persecution in India. In those circumstances the Tribunal was not required to consider whether the harm claimed was “serious harm” as defined by s 91R(2) of the Migration Act 1958 (Cth) (“the Act”). The Federal Magistrate was satisfied that the Tribunal was entitled to find that the appellant was not a person to whom Australia owed protection obligations under the Convention.

13. The Federal Magistrate noted that the appellant’s fifth ground was “far from clear”.  The Federal Magistrate observed that, while the Tribunal did refer to a number of sources regarding the nature, structure and size of political parties operating in Kerala, “no significant aspect of the decision making process appears to have been based on any of this material.”  The Federal Magistrate noted that the Tribunal’s adverse conclusions flowed directly from material provided by the appellant.

14. Finally, in relation to the sixth ground, the Federal Magistrate found that, as the Tribunal had rejected the appellant’s claims to persecution, it had no obligation to determine whether the protection provided by Indian authorities “provided a standard of protection comparable with international standards.”

15. The appellant also claimed that the Tribunal breached ss 91R, 414, 415 and 420 of the Act. The Federal Magistrate noted that the appellant had not explained, nor was it apparent, how it was said that the Tribunal failed to observe any of these sections in its consideration of the appellant’s claims.

16. The Federal Magistrate found that no jurisdictional error had been identified by the appellant’s pleadings, nor was any jurisdictional error apparent on a fair reading of the contents of the courtbook and in particular the Tribunal’s decision.  The Federal Magistrate therefore dismissed the application.

APPEAL TO THIS COURT

1. The notice of appeal to this Court was filed on 28 July 2008. The notice of appeal contains two grounds.  The first ground reads:

   “The appellant appeals from the whole of judgment of the Single Judge of the Federal Magistrate Court in his Honours judgment delivered on the 11 July failed to find error of law, jurisdictional error, and relief under section 39B of the Judiciary Act 1903.”

2. The second ground reads:

   “The honourable F.M. 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 claims.”

3. The appellant appeared in person on the hearing of his appeal this morning.  He was assisted by an interpreter. 

4. The appellant told the Court that his notice of appeal and written submissions which had been filed in support of that appeal had been prepared for him by a friend.  He had no independent understanding of the contents of either document.  When invited to make any additional submissions in support of his appeal the appellant said that the account which he had given to the Tribunal was true but that the Tribunal didn’t understand his case properly.  He said that he was confused by some of the questions asked of him by the Tribunal.  He said that he would have problems were he to return to India and that he wished to remain in Australia to be safe.

5. The appellant’s essential complaint is that the Tribunal did not accept his account of events which were alleged to have occurred in India.  He has not alleged any legal error on the part of the Tribunal or the Federal Magistrates Court.

6. I have examined the reasons of the Tribunal and those of the Federal Magistrate.  I can discern no reviewable error on the part of the Tribunal or any appellable error on the part of the Federal Magistrates Court.  On the contrary I consider that the Federal Magistrates decision was correct for the reasons which he gave.

7. The appeal should be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        14 November 2008

The appellant was self-represented
Counsel for the First Respondent:	Ms B Anniwell (Solicitor)
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	14 November 2008
Date of Judgment:	14 November 2008