SZLRI v Minister for Immigration and Citizenship

[2008] FCA 1288

FEDERAL COURT OF AUSTRALIA

SZLRI v Minister for Immigration and Citizenship [2008] FCA 1288

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

SZLRI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 857 OF 2008

BUCHANAN J
20 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 857 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLRI
Appellant

AND:

MINISTER FOR IMMIGRATION ADN CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is 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 857 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLRI
Appellant

AND:

MINISTER FOR IMMIGRATION ADN CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is an Indian national who came to Australia on 11 May 2007 and applied for a protection (Class XA) visa three days later.  In a handwritten statement attached to his application, the essence of his claim for a protection visa was stated in the following terms:

   ‘On 13^th March there was a dispute between Hindus and Muslims.  Thus the Muslims make an effort to kill me.  I ran away.  Then they crushed my jewellery shop and they came in my house and searched me to kill.  My circumstances forced me to leave my country or my enemies will kill me.’

2. The application for a protection visa was refused by a delegate of the first respondent on 29 May 2007.  The delegate, amongst the reasons given for refusing the application, said the following:

   ‘•The applicant claims that he fears persecution from members of the local Muslim community in Trivandrum in the state of Kerala in the south west.  However, the applicant’s claim is devoid of any details and lacks substance.  While the applicant claims to fear harm from the local Muslims who allegedly destroyed his jewellery business in town, he presented no evidence to support his claims.

   •According to independent country information Hindus constitute about 80 percent of the population of Trivandrum and I find it significant that the state of Kerala is a Hindu dominated area where the Muslims are in minority.  Furthermore, I find no evidence of reported communal clashes between Hindu and Muslim residents of Kerala.

   •While the applicant claims that the Indian authorities are unwilling and/or unable to protect him because he is a member of religious minority, apart from a generalised claim that he had allegedly been a subject of an attack by the members of the local Muslim community, he did not provide any evidence to indicate whether this incident had been reported to the authorities, and whether there had been any investigation and/or prosecution of the alleged perpetrators.  Furthermore, there is no evidence of the applicant seeking redress from the relevant local or national government authorities  While independent information confirms that Hindus and Muslims continue to feud over mosques constructed centuries ago on sites where Hindus believed temples stood previously and instances of Hindu-Muslim communal violence are still occurring, recent reports indicate that the state police has moved swiftly to prevent violence.  I find it significant that India is a secular state with no official religion.  The central government led by the United Progressive Alliance (UPA) has pledged to respect the country’s traditions of secular government and religious tolerance.  The government policy does not favour any religious group.’

3. On 25 June 2007 the appellant made an application to the Refugee Review Tribunal (‘the RRT’) for review of the delegate’s decision.  In a seven-and-a-half page further statement provided to the RRT on 25 June 2007 the appellant said:

   ‘4.My jewellery business was flourising [sic] to the jealousy of the people of my district who are predomenently [sic] Muslims and Hindus.

   5.Though I am a Hindu, the Hindus are against me.  The reasons for the enemity [sic] of the Muslims and Hindus towards me are stated below.’

   There followed in the handwritten statement, a series of complaints against both Hindu and Muslim elements. 

4. The appellant was invited to a hearing before the RRT on 17 September 2007.  The decision of the RRT, which was handed down on 30 October 2007 and affirmed the decision of the delegate not to grant a protection visa, sets out a detailed account of the assertions made by the appellant in his various statements as well as matters which were put to the RRT during the hearing.  The RRT was not satisfied that the matters advanced by the appellant gave rise to any refugee protection obligations on the part of Australia.  In any event, the RRT was satisfied that it was reasonable to expect the applicant to relocate within India.

5. On 22 November 2007 the appellant made an application for judicial review of the RRT decision to the Federal Magistrates Court of Australia (‘the FMCA’).  The grounds stated in that application were as follows:

   ‘1.That the decision of the “RRT” was effected by jurisdictional error in that the Tribunal did not take into consideration or “integers” central to the applicant claims.

   2.The Tribunal thereby failed to carry its’ review function and to exercise its jurisdictions.’

6. In a decision on 29 May 2008 which rejected the application for judicial review (SZLRI v Minister for Immigration and Anor [2008] FMCA 733) the FMCA said (at [23]-[25]):

   ‘23.The grounds of the application assert jurisdictional error on the part of the Tribunal because the applicant claimed it did not take into account “integers” central to his claims the applicant does not particularise what integers were not taken into account, nor was the applicant able to assist the Court today.

   24.On the material before the Court, I cannot see that the applicant’s complaint can be made out. The applicant’s claims were contained essentially in the statement attached to his protection visa application (CB 27 to CB 28), in his statutory declarations provided to the Tribunal (CB 53 to CB 60), and in what he told the Tribunal at the hearing. Despite opportunity, the applicant has not put before the Court any transcript of the Tribunal hearing, and all that is available to the Court in relation to claims made by the applicant at the hearing is that contained and referred to in the Tribunal decision record. Any plain reading of this material, and the Tribunal’s analysis, reveals that the Tribunal comprehensively addressed each aspect and integer of the applicant’s claims. I cannot see that the Tribunal failed in its obligation to address the applicant’s claims and each integer of his claims.

   25.It would appear that what the applicant really seeks to complain about is that the Tribunal made findings adverse to the applicant in relation to some aspects of his claims. As such, the applicant seeks impermissible merits review and this Court clearly cannot assist him in this regard (Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259).’

7. These findings, and the other discussion in the decision of the FMCA, reject the grounds of judicial review which were advanced by the appellant because no jurisdictional error in the decision or processes of the RRT was identified.  In his appeal to this Court the appellant has stated the matter differently.  His grounds of appeal in this Court are:

   ‘(1) JURISDICTIONAL ERROR (2) BREACHED OF PROCEDURAL FAIRNESS (3) BREACHED OF NATURAL JUSTICE
   PARTICULARS OF GROUNDS ARE: I CLAIM THE RRT BREACHED SECTION 424A(1)(A) OF THE MIGRATION ACT 1958 (Cth) BY FAILING TO PROVIDE PART LARS [sic] OF INFORMATION THAT FORMED THE REASON OR PART OF THE REASON FOR AFFIRMING THE DELEGATE’S DECISION.  MY RRT DECISION HAS NUMBER OF ADVERSE INFORMATION, WHICH BECAME THE REASONS FOR MY APPLICATION REFUSAL.  THE REASON WERE NOT PUT TO ME IN WRITING BEFORE THE RRT HAS MADE A DECISION.’

8. Read in the context of the ‘Particulars’ which are set out the appellant now complains that the RRT did not advise him in writing of matters which might be the reason for affirming the decision of the delegate and give him an opportunity to comment. In my view the contention, apart from the fact that it is unsupported by any detail, is not sustainable. Although the grounds before the FMCA were stated differently, the FMCA made some reference to the obligation on the RRT arising under s 424A of the Migration Act 1958 (Cth):

   ‘36.Further, in terms of s.424A of the Act, the Tribunal relied to some extent on independent country information (see CB 82.4). Such information falls within the exception contained in s.424A(3)(a) from the requirements in s.424A(1), in that it was not in personam information. The applicant’s evidence given at the hearing before the Tribunal (as was the information contained in his written statement to the Tribunal) is information provided to the Tribunal by the applicant for the purposes of the review and squarely fell within the exception contained in s.424A(3)(b) from the obligations set out in s.424(a)(1).’

9. There is no reason to doubt the correctness of this analysis.  Certainly none was advanced in the notice of appeal to this Court. 

10. At the hearing of the appeal the appellant, who had not, as directed, filed any written submissions renewed his request which had been rejected by the FMCA, to provide further documents for examination in connection with his claims.  I, like the FMCA, declined to accept them.  I explained to the appellant that it was not the function of this Court or the FMCA to review the merits of the decision of the RRT but, rather, to examine whether any jurisdictional error had occurred.  The appellant indicated, when he made his request to provide the documents, that they were the same documents the FMCA had declined to receive.  The FMCA dealt with the matter as follows (at [18]-[19]):

    ‘18.Further, that he had recently contacted the relevant hospital and police station in India, and was advised that “they were ready,” as he said, “all papers to him.”  I understood the applicant to be saying that he was now in a position to provide documents to support his claims to have been injured and to have reported certain matters to the police.  He also explained that he could not contact the hospital or the police earlier because he relied on a friend to do so, and that it was only recently that the friend was able to make such contact.

    19.As I explained to the applicant during the course of the hearing, the Court would need to be able to find at least some jurisdictional error, some error on the part of the Tribunal, in the way that it went about making its decision, if it were to assist him.  That is, in the way that it exercised its powers that have been given to it by the Act.’

11. In my view this approach was correct.  The appellant had no other oral submissions to make, other than to say that he wanted a chance to present his case again to the RRT.

12. Ms Wong, who appeared for the Minister, drew my attention to one potentially infelicitous expression by the RRT, but did so in order to submit that, properly understood, it did not reveal any jurisdictional error and to point out that it was one only of a number of reasons why the appellant’s claims to have a well-founded fear of persecution were not accepted.  The passage in the RRT decision is the second I have emphasised in the following paragraph:

    ‘The Tribunal understands that in an appropriate case, an applicant may have sufficiently strong convictions, the suppression of which in order to avoid harm might constitute persecution for that applicant; and that the convictions of some applicants are sufficiently strong that there may be a real chance they could give voice to them on return and come to the adverse attention of the authorities, or other persons, in their country of origin.  However, based on the evidence before it, the Tribunal is not satisfied the continuing Hindu applicant’s alleged religious beliefs, including that there is one God (contradictory to Hindus in the BJP party), nor his alleged political activities (for the Congress Party), have formed an essential and significant part of the reason he may have been targeted in India.  Secondly, whatever the applicant’s religious and or convictions may have been, based on the evidence before it, the Tribunal is not satisfied their suppression in order to avoid harm would constitute persecution for the present applicant, nor that there is a real chance he would give voice to them on return and come to the adverse attention of either agents of the State, or other persons, in India.  Neither is the Tribunal satisfied the applicant has been imputed with any conviction (ie religious or political) that would give rise to a real chance of persecution should he return to Kerala State in India.
    (Emphasis added)

13. The possibility that the second passage emphasised might reveal some misunderstanding or misapplication of the RRT’s obligations, and hence the possible commission of jurisdictional error, was said to arise from the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, although I was not referred to any particular passage in the judgments in that case. The case concerned two male citizens of Bangladesh who were in a homosexual relationship. A finding of fact had been made by the RRT that they would live discreetly, as they had before, and that therefore their fear of harm in their own country was not well-founded. A majority in the High Court found that the RRT had erred in its approach to the issue. The analysis in the majority judgments was not confined to the question of sexuality. McHugh and Kirby JJ said (at [50]):

    ‘50In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.’

14. Gummow and Hayne JJ said (at [80]):

    ‘80If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.  But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.  And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning.  The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.’

15. I am satisfied that those statements of principle are not engaged in the present case.  In the first passage I emphasised, in the relevant paragraph of the RRT decision set out earlier, the RRT correctly acknowledged the proper approach to the question.  The second passage emphasised cannot be read apart from the words which follow it (‘for the present applicant’).  Read in context, the statement is no more than a finding of fact relating to the circumstances of the appellant.  In addition, as Ms Wong emphasised, the passage in question occurs in the second of three reasons given for coming to the conclusion reached by the RRT on this issue.  Finally, she also pointed out that there was an independent finding that the appellant could, if necessary, be reasonably expected to relocate.  That conclusion has never been challenged by the appellant.

16. Accordingly, there is not any other reason, not identified by the appellant, appearing from the decision of the RRT to conclude that the RRT committed a jurisdictional error.  The appeal from the decision of the FMCA must therefore be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        20 August 2008

The Appellant appeared in person.
Counsel for the First and Second Respondents:	Ms T Wong
Solicitor for the First and Second Respondents:	Clayton Utz

Date of Hearing:	12 August 2008
Date of Judgment:	20 August 2008