SZLUE v Minister for Immigration and Citizenship

[2008] FCA 1433

FEDERAL COURT OF AUSTRALIA

SZLUE v Minister for Immigration and Citizenship [2008] FCA 1433

Migration Act 1958 (Cth)

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZGHC v Minister for Immigration & Citizenship [2007] FMCA 570
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30

SZLUE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 981 OF 2008

REEVES J
18 SEPTEMBER 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	18 SEPTEMBER 2008
WHERE MADE:	DARWIN

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	18 SEPTEMBER 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against a judgment of Federal Magistrate Orchiston delivered on 13 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 29 November 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.

   BACKGROUND – SUMMARY OF FACTS

2. The appellant is a citizen of India who arrived in Australia on a visitor’s visa on 28 March 2007. He lodged his application for a protection visa several weeks later on 7 May 2007. A delegate of the first respondent refused that application on 19 July 2007.  The appellant then applied to the Tribunal for a review of that decision on 14 August 2007.

3. The appellant lodged a statement with his protection visa application which set out his claims to fear persecution in India on the basis of his political opinion, as a member of the National Development Front (‘NDF’). In his visa application he claimed that in 1998 he became secretary of the NDF for the region of Malattur Thana.  He claimed that as a result, members from opposing parties filed false charges against him and he was beaten up ‘many times’. He claimed that his ‘life changed for the worse’ in April 2006, when the Communist Party of India (Marxist) (‘CPI(M)’) was elected to govern by a narrow margin.

4. He said that he was threatened with violence by the CPI(M) leader if he did not leave politics.  He claimed his construction business was ransacked by CPI(M) members in August 2006 and although he reported this to the local police, he claimed they would not take any action ‘against CPI(M) members because there was no eyewitnesses’. He stated that he therefore approached the District Commissioner in Mallapuram to complain about the inaction of the local police and then one week later, he was suddenly and forcibly taken to the local police station where he was ‘brutally tortured and interrogated’ and accused of being a terrorist. He claimed that if he returns to live in India the CPI(M) people will kill him and that as he has broken his bail conditions by leaving India to come to Australia, the police will apprehend him and he will never get bail again.

5. In answer to question 44 of the application form - about whether the authorities can and will protect him on return to India - the appellant wrote ‘‘protection’ means police and police means the ruling party, those who are in power. Therefore it is abs[ur]d to rely on police protection’.

6. The appellant appeared at a hearing before the Tribunal on 2 October 2007. At that hearing, the appellant reiterated that he had been doing altruistic work for the NDF in India and that he lost his home and business because of the ‘Marxists’.  He claimed that if he returned to India they would kill him.  He said he supported the Indian Union Muslim League (‘IUML’) at the elections in April 2006 and after that everything started to happen.

7. He said that on the day of the elections, some Marxists had come to his home, broken down the door, pushed him around and destroyed his motorbike.  He claimed this had traumatised his elderly father to the extent that he had to go to a ‘mental hospital’ for two days.  The Tribunal put to the appellant that he was contradicting the claims in his visa application by stating that none of the harm he claimed to have occurred, had in fact not occurred until April 2006 and that none of it was actually physical. When further questioned about these and other inconsistencies between his evidence and his visa application, the appellant explained that his friend had written his visa application for him.  The appellant said that he left India a year later.  When the Tribunal asked him why he would remain there after these incidents with the Marxists, he said he could not leave any sooner, because he had ‘some work to finish’ and he had ‘to earn some money for his family’.

8. In its Decision Record, the Tribunal recorded that the appellant was able to give a certain amount of detail about the NDF, however he could not recall the date of the ‘Freedom Parades’ held by the NDF and neither could he provide the Tribunal with ‘basic information relating to the outcome of the [April 2006] elections’. The appellant was allowed until the end of October 2007 to provide further documents to the Tribunal, to support his claims, but he failed to do so.

   THE TRIBUNAL’S DECISION

9. In its Decision Record, the Tribunal accepted that the appellant had some knowledge of politics in India, for instance he was aware that a CPI(M) candidate had won the April 2006 election, and he had some knowledge of the IUML. It also accepted that he had taken steps to support the IUML. However, due to the appellant’s lack of knowledge regarding various aspects of the April 2006 elections including the number of seats won by the United Democratic Front (‘UDF’), which included the IUML, the Tribunal did not accept that the appellant was truly involved in supporting ‘Master Hamid’, the IUML candidate in the April 2006 elections. The Tribunal recorded that its ‘concerns regarding the [appellant’s] lack of knowledge of the election results and the credibility of his evidence in relation to his claims regarding the events in India which led to him seeking protection, is compounded by the inconsistent nature of his claims between his written statement to the Department and oral evidence to the Department in relation to the events both prior to and following the 2006 elections’.

10. The Tribunal went on to find that it could not accept:

    (a)that the appellant was harmed as a result of his involvement with the NDF and IUML;

    (b)that he was ever harmed or threatened by the CPI(M) (at least prior to April 2006);

    (c)that he was accused by the police or suffered any harm from the police as a result of his involvement with the NDF;

    (d)that the appellant’s home or office was ransacked, traumatising his family;

    (e)that he was threatened with death and told to leave India; nor

    (f)that the appellant had any false charges against his name in India or that he had breached any kind of bail in coming to Australia.

11. The Tribunal did accept that the appellant was a secretary for the NDF and known for his involvement with them. However, particularly given that the NDF was involved in altruistic works and not violent actions, the Tribunal did not accept that the appellant had been, or that he would be, harmed for his NDF role. The Tribunal accepted that the appellant’s business may have suffered and that he may have lost business contracts, however it did not accept that this had occurred by reason of the appellant’s involvement with the IUML or the NDF and alleged pressure exerted by the CPI(M), or the police.

12. The Tribunal concluded that the appellant’s ‘evidence does not establish that he has been targeted for reasons of his race or religion or that he has ever suffered harm for this reason or for any other [C]onvention reason in India’ and it confirmed the delegate’s decision.

    THE FEDERAL MAGISTRATE’S DECISION

13. In an amended application filed in the Federal Magistrates Court on 19 March 2008, the appellant raised seven grounds for judicial review.  They can be summarised as follows:

    1.The Tribunal breached its obligations under s 430 of the Migration Act 1958 (Cth) (‘the Act’);

    2.The Tribunal breached its obligations under s 424A of the Act ;

    3.The Tribunal failed to consider written claims made by the appellant;

    4.The Tribunal failed to consider ‘whether the Indian authorities provided a standard of protection comparable with international standards’ as it is required to do;

    5.The Tribunal made jurisdictional error in not considering integers central to the appellant’s claims and/or did not take into account the length of the hearing, and the fact that he felt stressed and intimidated;

    6.The Tribunal failed to exercise its jurisdiction in that it did not consider that he had been under pressure from the CPI(M), that the appellant’s NDF and IUML activities resulted in threats by CPI(M) member, and that his family members had also suffered in a ‘communal riot’; and

    7.The Tribunal failed to recognise that the appellant satisfied the four key elements for ‘Refugee’ status, within the Convention.

14. The Federal Magistrate considered the Tribunal’s decision in light of the claims made by the appellant and dismissed his application for judicial review. In relation to the first ground, her Honour found that the Tribunal had fulfilled its obligations under s 430 of the Act, as it had ‘reviewed each of the [appellant’s] claims and [recorded that it] rejected them due to inconsistencies within the [appellant’s] evidence, and between the [appellant’s] evidence and the independent country information’.

15. In relation to the second ground, her Honour noted that it is well-established that independent country information, like information and evidence provided by the appellant himself, is excluded from s 424A by the operation of s 424A(3) of the Act. Her Honour also noted that ‘information’ does not extend to include the Tribunal’s thought processes (including consideration of credibility where appropriate) for the purposes of s 424A, citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26.

16. In relation to the third ground, her Honour found that the Tribunal had sufficiently dealt with the appellant’s claims and, in any case, findings of fact made by the Tribunal ‘are not open to judicial review’. 

17. In relation to ground four, her Honour agreed with counsel for the first respondent that, once it had determined that the appellant did not have a well-founded fear of persecution, the Tribunal was not required to consider the level of protection offered by  Indian authorities; and particularly not by reference to some ‘international standard’, citing SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.

18. The learned Federal Magistrate appears to have read ground five as an allegation of bias. Her Honour noted that the appellant had not put the transcript of the Tribunal hearing or any other evidence before the Court. She then dismissed this ground on the basis that in the absence of any evidence, there was nothing on the face of the Tribunal’s Decision Record from which ‘a hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias’ might reasonably apprehend that the appellant was in any way intimidated or overborne by the approach adopted by the Tribunal, or from which an inference might be drawn that the Tribunal did not bring an impartial mind to the task of the decision-making process, relying upon Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.

19. In relation to ground six, her Honour found that the Tribunal expressly referred to the claims raised by the appellant and dismissed them in its ‘Findings and Reasons’; and these, again, were findings of fact not open to judicial review.

20. Finally, in relation to ground seven, her Honour determined that the Tribunal had in fact set out the four key elements of a ‘Refugee’ at the beginning of its decision and that, having concluded ‘on the second element that the [appellant] did not have a genuine subjective fear of persecution’, there was no purpose in considering the third and fourth elements, which were necessarily inapposite to the appellant.

21. Her Honour therefore dismissed the application for want of any jurisdictional error.

    GROUNDS OF THE PRESENT APPEAL

22. The notice of appeal filed in this Court on 2 July 2008 raised the following ground:

    The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

    Particular:

    i.it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here. 

    THE CONTENTIONS

23. At the hearing of the appeal before me on 12 September 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Markus appeared for the first respondent. 

24. The appellant had earlier filed an outline of written submissions and he also made some brief oral submissions.  In his brief oral submissions, the appellant merely alleged that the Tribunal had failed to properly consider his case.  In his outline of written submissions, the first paragraph is in almost identical terms to the sole ground stated in the notice of appeal.  However, he then set out a series of submissions that raise new matters not raised in the notice of appeal.  They may be summarised as follows:

    a.The Tribunal failed to record its decision in accordance with s 430 of the Migration Act (particulars are provided).

    b.The Tribunal denied the appellant procedural fairness by reaching adverse conclusions on his credibility that were adverse to him, being conclusions that were not obviously open to it on the known material and without giving the appellant the opportunity to be heard in respect of those matters.

    c.The Tribunal failed to consider an integer of the appellant’s claim, namely that he was a Liberal Muslim who was at risk of harm, if he were to return to India, from radical Hindus and that he would not be able to access effective protection.

    d.The Tribunal failed to comply with s 424A of the Migration Act by not providing the appellant with the information it relied upon about the history of the NDF and IUML organisations and the country information it had relied upon about Kerala.

    e.The Tribunal’s decision was affected by actual bias constituting judicial [sic jurisdictional] error by failing to investigate the appellant’s claims to fear persecution in India.

    f.The Tribunal failed to properly analyse the ‘future harm’ the appellant may suffer if he were to return to India.

    g.The Tribunal committed serious jurisdictional error by failing to assess or carry out the ‘real chance test’ on the appellant’s claims.

25. Mr Markus relied on an outline of written submissions that had earlier been filed on behalf of the first respondent.  That outline of written submission addressed the sole ground raised in the notice of appeal.  However, because the appellant did not serve his outline of written submission on the first respondent, the first respondent’s outline of written submissions did not address the new matters raised in the appellant’s outline of written submissions (above).  Mr Markus therefore addressed those submissions in his oral submissions.

26. In its written submissions, the first respondent submitted in summary that the appellant’s claims had not been accepted by the Tribunal on credibility grounds, on the basis of the evidence before it and there was therefore no error, let alone jurisdictional error, in its decision.  Further, having rejected the appellant’s claims on credibility grounds, there was no necessity for the Tribunal to consider whether the appellant’s disbelieved claims met the statutory criteria for ‘Refugee’ status. 

27. As noted above, in his oral submissions Mr Markus addressed each of the new matters raised by the appellant in his outline of written submissions.  His oral submissions may be summarised as follows:

    a.In her decision, (at [20] to [32]) the Federal Magistrate correctly concluded that the Tribunal had not failed to comply with s 430 of the Act. Even if there had been such a failure, that breach did not constitute jurisdictional error: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30.

    b.Because of s 422B of the Act, the Tribunal was not required to comply with the common law procedural fairness hearing rule and even if it were, it did so by giving the appellant a full opportunity to address all its concerns as demonstrated in the Tribunal’s Decision Record. Similarly, the Tribunal complied with s 425 of the Act by giving the appellant sufficient opportunity.

    c.It was never an integer of the appellant’s claims that he feared persecution in India because he was a Muslim or a Liberal Muslim.  He did not raise religion as a basis for his claims to fear persecution, instead each of his claims related to his political activities.  In any event, though he did not raise religion as a basis for his fear of persecution, the Tribunal did consider the possibility of religious persecution incidentally in the concluding paragraphs of its Decision Record and rejected it (see [12] above).  There is therefore no basis for this allegation.

    d.In her decision, (at [33] to [40]) the Federal Magistrate correctly dealt with the appellant’s similar claims about a breach of s 424A of the Act (see [15] above).

    e.The allegation of actual bias is a very serious allegation and it has not been clearly particularised, nor supported by any evidence.  It is for the appellant to present his case and for the Tribunal to fairly consider that case and the material presented by the appellant.  This claim is not made out.

    f.The appellant’s submission that the Tribunal failed to properly assess his ‘future harm’ is not particularised and it is therefore difficult, if not impossible, to identify what the appellant is referring to.  Clearly, the Tribunal set out the relevant law in its Decision Record and properly considered the appellant’s claims. 

    g.The appellant has failed to identify any error in the Federal Magistrate’s decision or jurisdictional error in the Tribunal’s decision and this appeal should therefore be dismissed.

    CONSIDERATION

28. Mr Markus informed the Court that since the appellant did not have legal representation, the first respondent did not seek to have either the ground of appeal set out in the notice of appeal, or the additional matters the appellant raised in his outline of written submissions, dismissed on discretionary grounds. In any event, on a generous interpretation, the sole ground of appeal raised in the notice of appeal appears to be similar to the seventh ground raised before the Federal Magistrate. Both grounds appear to allege that the Tribunal should have proceeded to find that the appellant was a ‘Refugee’ within the meaning of that term in the Act. I consider the Federal Magistrate was quite correct in concluding (see [20] above) that once the Tribunal had found on credibility grounds that the appellant did not as he claimed have a genuine subjective fear of persecution, there was no necessity for the Tribunal to consider whether or not the other elements of the definition of ‘Refugee’ in the Act might have applied to the appellant. Therefore, there is no merit, in my view, in the sole ground of appeal raised in the notice of appeal.

1. As to the additional matters raised in the outline of written submissions that the appellant has filed, these appear to replicate most of the grounds of review that were raised before the Federal Magistrate. Putting aside the obvious deficiency that each of the grounds is directed to the Tribunal’s decision and do not allege error on the part of the Federal Magistrate, I have considered her Honour’s reasons in relation to each of those matters. I respectfully agree with each of them for the reasons her Honour has stated. Specifically, I agree with her Honour that there has been no breach of s 430 of the Act (see [14] above), no breach of s 424A of the Act (see [15] above), no failure to consider any of the appellant’s claims (see [16], [17] and [19] above) and no basis for concluding that the Tribunal demonstrated apprehended or actual bias (see [18] above).

2. As to the matters that were not raised before the Federal Magistrate, I agree with the submissions of Mr Markus that there was no denial of procedural fairness or breach of s 425 of the Act (see [27g] above), that the claim of persecution based on Liberal Muslim identity was never raised (see [27c] above) and that the claimed failure to assess ‘future harm’ is unintelligible without particulars (see [27f] above). It follows that none of the additional matters raised by the appellant in his written outline of submissions has any merit.

3. It follows, in my view, that the Federal Magistrate did not commit any error in reaching her decision and nor did the Tribunal commit any jurisdictional error in its decision. 

CONCLUSION

1. For these reasons, I order that this appeal be dismissed.  I will hear the parties on the question of costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        18 September 2008

Appellant:	In person
Counsel for the First Respondent:	Mr A Markus
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	12 September 2008
Date of Judgment:	18 September 2008