SZLPI v Minister for Immigration and Citizenship
[2008] FCA 1841
•5 December 2008
FEDERAL COURT OF AUSTRALIA
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841
Migration Act 1958 (Cth) s 91, s 424A
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
SZBYR v Minister for Immigration [2007] HCA 26SZLPI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1312 OF 2008
REEVES J
5 DECEMBER 2008
DARWIN (VIA VIDEOLINK TO SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1312 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLPI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
5 DECEMBER 2008
WHERE MADE:
DARWIN (VIA VIDEOLINK TO SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1312 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLPI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
5 DECEMBER 2008
PLACE:
DARWIN (VIA VIDEOLINK TO SYDNEY)
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against the judgment of Federal Magistrate Raphael delivered on 1 August 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 9 October 2007 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
FACTUAL SUMMARY
The appellant is a citizen of India who arrived in Australia on 20 April 2007 as a member of the Rajasthan Indoor Cricket Team, which was to play a number of cricket matches in Australia. On 27 April 2007, the appellant and other members of the cricket team lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the appellant’s application on 18 May 2007. On 12 June 2007, the appellant applied to the Tribunal for a review of that decision.
In his application for a protection visa the appellant claimed, in summary, that he feared harm if he were to return to India because he had been the subject of extreme extortion and corruption by the police and that the authorities were unwilling or unable to afford him any protection.
A hearing was arranged before the Tribunal on 17 July 2007, however that hearing could not proceed because the appellant did not understand the interpreter who was provided. The hearing resumed on 23 August 2007, with a different interpreter.
At the resumed hearing, the appellant claimed to fear persecution on the basis of his political beliefs as a member of the Congress Party and his religion as a Hindu living in a town with a high proportion of Muslims. The appellant stated that he ran a sweet shop in Rajasthan and he claimed that after the MLA (State) elections that were held in 2003, Muslims would come into his shop and touch the sweets with their hands that they also used to eat meat. The appellant claimed this was done to harass him because the Muslims believed that he had supported the opposing party in the MLA elections. The appellant claimed that he complained to the Police but they took no action.
The appellant claimed that during the Municipal elections held in November 2004, he held the position of treasurer of the Deedwana Congress Youth Party and as a member of that party he was involved in the door to door canvassing of votes for the election. The appellant claimed he and the other party members were attacked by a group of people in a car while they were passing through a Muslim area canvassing for votes. The appellant claimed that he also reported this incident to the Police, but again, they took no action.
The appellant made further claims of attacks on both him and his shop. One of these attacks included the appellant being pushed off his motor bike causing him to fracture his hand. At the hearing, the Tribunal member asked the appellant if it was possible this incident was an accident; and he conceded that it might have been.
Finally, the appellant claimed that he feared for his life in India because he was a witness to the murder of a politician and his associate that took place on 27 June 2006. The appellant claimed that he had met these two men in a café shortly before leaving them to buy cigarettes. Before he returned they were both shot and killed. The appellant claimed that the shooting was carried out by Muslims who were known to be involved in political activity. The appellant stated that if he had been present in the café at the time of the shooting he, too, would have been killed despite not being the intended victim of the attack. Following these murders, the appellant closed down his shop and did not reopen it. He claimed that after this incident he and his whole family were threatened. He was told that he should not mention the murder incident, otherwise he would be killed. The appellant stated it was the murders and further threats to himself and his family that caused him to leave India in 2007.
THE TRIBUNAL’S DECISION
In the Findings and Reasons section of its Decision Record, the Tribunal considered the appellant’s claims in two parts: the political and religious claims up until June 2006; and the murders on 26 June 2006 and threats in relation thereto. In relation to the first part of the appellant’s claims, the Tribunal found, first, that the incidents that occurred in the appellant’s shop subsequent to the 2003 State elections amounted to harassment, but were not significant or serious enough to amount to the ‘serious harm’ required to constitute persecution within s 91 of the Migration Act 1958 (Cth) (‘the Act’). Secondly, the Tribunal concluded that the appellant’s role in the Deedwana Congress Youth Party was a low level of involvement and therefore there was no real chance that he would suffer persecution. Thirdly, the Tribunal concluded the appellant’s claim that he was knocked off his motor bike after the 2004 elections lacked detail and there was nothing about the incident to suggest it was anything more than an accident. Finally, in relation to this period, the Tribunal referred to its question of the appellant: “why he did not leave in December 2005 when he obtained his passport” and noted his response: “that at that time it was not serious and that it was after the murders that it was unbearable to live there”.
However, in relation to the second part of the appellant’s claims, viz the murders on 26 June 2006, the Tribunal was satisfied that the appellant had been threatened over those murders. Nonetheless, it found that the appellant was not the intended victim of the murders and that the subsequent threats made to him: “did not mention [his] membership of a political party; or his political opinion; or his imputed opinion”. Accordingly, it found: “The threats were only related to the applicant being a witness to murder and the Tribunal finds accordingly. The Tribunal also finds that the threats were not made for a Convention reason. Therefore, the Tribunal finds that these circumstances do not amount to persecution for a Convention reason”. The Tribunal also noted that despite the appellant’s claimed fear of persecution, he remained in India for 10 months after the murders. Finally, the Tribunal concluded that the appellant’s evidence in relation to his fear that his life was at risk was “vague and lacking in detail”.
In conclusion, the Tribunal stated: “… there is no plausible evidence before [the Tribunal] that the applicant has suffered persecution in India because of his race, religion, political opinion, imputed political opinion or his membership of a particular social group or for any other Convention reason. Nor, in the Tribunal’s view, does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to India”. Accordingly, it affirmed the delegate’s decision.
THE FEDERAL MAGISTRATE’S DECISION
In his further amended application to the Federal Magistrates Court dated 10 July 2008, the appellant contended in summary, (supported by particulars), that:
1. The Tribunal had failed to comply with s 424A of the Act.
2. The Tribunal had failed to consider all aspects of relocation.
3. The Tribunal had failed to properly consider all aspects of State protection.
The Federal Magistrate dismissed the appellant’s application for judicial review. In relation to ground 1, his Honour found that the information referred to by the appellant was a part of the Tribunal’s thought processes and conclusions which did not constitute ‘information’ for the purposes of s 424A of the Act, relying upon SZBYR v Minister for Immigration [2007] HCA 26. His Honour also found that the information relating to the breakdown of the Hindu and Muslim population was information that was not specifically about the appellant and therefore fell within the exception to s 424A(1) that is contained in s 424A(3)(a).
In relation to ground 2, his Honour found that since the Tribunal had concluded that the harm suffered by the appellant was not Convention-related, it was not necessary for it to consider the issue of relocation. Similarly, in relation to ground 3, his Honour found that it was not necessary for the Tribunal to consider the adequacy of State protection.
THE PRESENT APPEAL
On 20 August 2008, the appellant filed a notice of appeal in this Court which alleges in summary, (again, supported by particulars) that:
1.The Federal Magistrate was in error in not finding that the Tribunal had breached its powers under s 424A of the Act.
2.The Federal Magistrate erred in finding that the Tribunal was under no obligation to consider the issue of relocation.
3.The Federal Magistrate was in error in finding that the Tribunal was not in error by not considering the adequacy of State protection.
At the hearing of the appeal before me on 5 November 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Markus appeared for the first respondent. Both parties had previously submitted an outline of written submissions.
CONSIDERATION
In his particulars of ground 1, the appellant identified the relevant information, somewhat obscurely, as: “the discussion on the subject of the exchange that were criminal in nature”. Based on the appellant’s outline of written submissions, this appears to be a reference to the exchange between the Tribunal and the appellant at page 17 of the transcript of the Tribunal hearing as follows:
Q:It’s a bit hard for the police to do anything if you don’t tell them about what’s happening.
A: Why should I become witness of murder case? They will kill me.
Q:This is a criminal matter. It’s not you being persecuted for a convention reason.
A: Yeah, that is the reason of this convention. That’s politics.
Q:No, it’s not. No. Murder is a criminal matter. You have not given the police a chance to deal with it.
A: Because of the politics he was killed.
Q: So, that doesn’t matter. It’s a murder. You’ve been threatened because you’re a witness of a murder and you’ve not gone to the police. It’s not a convention reason.
A: I didn’t go to police because I wanted to save myself and because it was related to politics.
Q: No, and you’re saying that you couldn’t identify – you didn’t tell the police who these people were that were harassing you in your shop, so again, how could the police do anything?
A: In India, it is like that. If someone becomes witness, he or she would have been killed by who has become witness, so why shop, so again, how could the police do anything?
Q: But this is not the politics; it’s the fact that you witnessed a crime.
A: Because they were politicians who were murdered.
Q: As I said, it’s a crime. The other matters, when you were attacked in the jeep, you went to the police but you couldn’t identify anybody, so nothing could be done. When you were attacked on your motorbike you couldn’t really identify anybody so you didn’t go to the police.
A: But it was night-time so I wouldn’t recognise anyone but I’m sure they were these people.
I interpolate that the appellant was represented by counsel at the hearing before the Federal Magistrate and his counsel relied upon this exchange as containing information that should have been put to the appellant under s 424A of the Act.
In my opinion this exchange does not constitute “information” under s 424A(1) of the Act, i.e. knowledge of relevant facts or circumstances communicated to or received by the Tribunal: see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 (‘VAF’) at [24(ii)] per Finn, Stone JJ. Instead, I consider it constitutes the Tribunal member’s thought processes about the effect of the evidence the appellant had given, which the Tribunal member was putting back to the appellant for comment, specifically that the Tribunal member thought the appellant had not been persecuted for political reasons, but rather, was being threatened because he had witnessed a crime: see VAF at [24(iii)]. I do not therefore consider that this exchange constitutes information that the Tribunal was bound to put to the appellant under s 424A of the Act. It follows that I do not consider that the Federal Magistrate made any error in rejecting the similar ground of review before him.
In his outline of written submissions, the appellant appears to rely upon three other items of information that he claimed fell within s 424A (1) of the Act. Since the appellant was not legally represented before me and since all these issues were addressed in argument, I will consider them, notwithstanding that they do not appear to have been raised in the particulars the appellant provided of this ground of appeal.
The items of information that the appellant appears to have relied upon are as follows:
(a)information about the “population of the Muslim people” in Rajasthan;
(b)the information the Tribunal was referring to at page 19 of the transcript of the Tribunal hearing where the Tribunal member says “sorry, I’m just checking a couple of other things. Sorry, I just want to look at one more thing. I will consider my decision.”; and
(c)the information that “the applicant’s passport was issued on 14 December 2005”.
In my view the first item of information is clearly, what is referred to as, independent country information, which falls within the exception provided for in s 424A(3)(a) of the Act as information: “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
In relation to the second item of information, there is nothing in the transcript of the Tribunal hearing, or the Tribunal’s decision record, to indicate whether the Tribunal is referring to information when making these comments and, if so, what it is. There is therefore nothing to indicate that the “thing” or “things” referred to is: “… information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision…” I do not therefore consider that the appellant has shown that this second item of information involves any information which should have been put to him under s 424A(1) of the Act.
As to the third item of information, at the hearing of this appeal, the appellant confirmed to me that he took his passport to the Tribunal hearing and provided it to the Tribunal member so that he could copy it. As appears from a copy of the passport included in the appeal papers, it was issued on 14 December 2005. It is therefore clear that the appellant himself was the source of the information about the date of issue of the passport, which the Tribunal relied on, in part, to reach its decision. In those circumstances, the Tribunal was not obligated to put that information to the appellant under s 424A(1) of the Act because that information fell within the exception contained in s 424A(3)(b) i.e. information the appellant gave to the Tribunal for the purposes of the review.
As to ground 2 of the notice of appeal, because the Tribunal found as a matter of fact that the appellant did not have a well founded fear of persecution for a Convention reason and there was no real chance that he will suffer persecution for a Convention reason in the future if he were to return to India, the question of him relocating to avoid that non-existent persecution simply did not arise. I therefore agree with the Federal Magistrate that the Tribunal made no error by not considering the relocation issue.
Similarly, in relation to ground 3 of the notice of appeal, because the Tribunal drew the conclusions it did about the lack of any well founded fear of persecution and the lack of any real chance of future persecution, the question whether the State would offer him protection from such persecution also did not arise. I therefore do not consider the Federal Magistrate made any error by concluding that the Tribunal was not required to consider the State protection issue.
CONCLUSION
For these reasons, none of the appellant’s grounds of appeal has any merit and this appeal must therefore be dismissed. I will hear the parties on the question of costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 5 December 2008
Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr A Markus
Date of Hearing: 5 November 2008 Date of Judgment: 5 December 2008
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