SZLUZ v Minister for Immigration & Citizenship

[2008] FCA 1155

FEDERAL COURT OF AUSTRALIA

SZLUZ v Minister for Immigration & Citizenship [2008] FCA 1155

SZLUZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 599 OF 2008

SUNDBERG J
8 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 599 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	8 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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 599 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE:	8 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The background to this appeal and the appellant’s claims before the Tribunal are set out in the Magistrate’s reasons for decision at [1] to [2]. It is not necessary to repeat them.

2. The Magistrate’s summary of the Tribunal’s decision, which affirmed the first respondent’s refusal of a protection visa, is at [2] of the Magistrate’s decision.

3. The grounds of review that were before the Magistrate are set out at [3](a) to (h). I will need to return to them later.

4. The Magistrate accepted the first respondent’s submissions in relation to the grounds referred to in [3] and dismissed the application for review.

5. The ground of appeal to this Court is that the Magistrate’s conclusion that the Tribunal’s decision is “free from any jurisdictional error” is a jurisdictional error. In view of this unhelpful ground, I will treat the appellant as seeking to rely on the grounds upon which he relied before the Magistrate.

6. The first ground was that the Tribunal failed to accord the appellant procedural fairness under s 424 of the Migration Act 1958 (Cth) (the Act) insofar as it relied on independent evidence “as to the prevalence of claims about political persecution”. The Federal Magistrate said at [11]:

   in respect of any procedural fairness obligations which may arise pursuant to [s 424] of the Migration Act, I accept that the Tribunal put the information to the applicant for comment at the Tribunal hearing (see CB 67) such that … the applicant was on notice of the determinative issues before the Tribunal ….

   From pages 5 and 6 of the Tribunal’s reasons it appears that the Tribunal put to the applicant that independent information disclosed that

   ·India is a secular state and that relations between various religious groups are generally amicable among the substantial majority of citizens

   ·Kerala (whence the appellant came) is law abiding state where legal recourse is available to those who feel threatened and persecuted

   ·if supporters of registered parties are subject to political persecution from rival political parties, they generally have recourse through the Indian legal system

   ·Indian authorities seek to put an end to periodic outbreaks of communal violence

   ·persons considered to be inciting communal violence can be prosecuted.

   Having regard to the fact that the Tribunal put each of these matters to the appellant, and that he responded to them, there is no substance in the complaint that there was a denial of procedural fairness in the Tribunal’s reliance on the independent information.

7. The second ground is that the Tribunal breached s 424A of the Migration Act 1958 (Cth) by relying on independent country information. The Magistrate pointed out that s 424A(1) does not apply to such information by reason of s 424A(3)(a). No error is disclosed by this ground.

8. The third ground is that the Tribunal did not consider the appellant’s request for an extension of time in which to provide evidence that he is President of the IUML. By letter of 8 November 2007 the appellant requested the Tribunal to give him one month in which to submit “some evidence related to his application”. The letter did not state what this evidence was. The request was refused, though the Tribunal said it would take into account additional evidence filed before it handed down its decision. The decision was handed down on 4 December 2007. No additional evidence had by then been received.

9. The Magistrate rejected this complaint as without substance. He said  at [6]‑[7]:

   First, the applicant was on notice from at least 19 July 2007 when the delegate made his decision, that his failure to produce evidence to substantiate his claims of senior party membership was an issue he needed to deal with: CB 39. Secondly, the request for the extra time made on 8 November 2007 was, on its face, unpersuasive because it gave no clue as to the nature or significance of the additional documents that he was anticipating.
   …
   In my view, given the amount of time the applicant had already had to produce additional information and given the vague terms in which the request was expressed, the Tribunal was entitled to reject it.

10. It is plain from the foregoing that there is no substance in the appellant’s assertion that the Tribunal failed to consider his request. No error has been shown in the Magistrate’s rejection of this ground.

11. The fourth ground is that the Tribunal failed to consider his “genuine claim” that he was physically assaulted on several occasions. This complaint is quite without foundation. The Tribunal recorded the appellant’s claims at page 4 of its reasons. They included his claim to fear persecution by reason of his alleged role as president of IUML as well as his religious activities. However the Tribunal did not accept his claims. It said:

    The applicant has provided very little evidence to support his claims …. While he has provided documentary evidence of his IUML membership, he has not provided evidence supporting his claim to have been IUML president in his local region. He also gave imprecise and conflicting advice on the nature and timing of the alleged attack on him by CPI(M) supporters. Based on the evidence, the Tribunal is not satisfied that the applicant was ever a leading official of IUML or that he was ever physically attacked by IUML supporters because of his religion and/or political opinion.

    In the light of this, the present complaint that there was a failure to consider the “genuine claim” is baseless. It is simply a disagreement with the Tribunal’s factual finding.

12. The fifth ground is that the Tribunal failed to consider “properly” whether the applicant would suffer harm “as per s 91R(2)(a)” of the Act. There was no such failure. There was no occasion for the Tribunal to consider whether the appellant would suffer “serious harm” under par (a) – a threat to a person’s life or liberty – because it had rejected his claims to have suffered harm in the past. See [11] above. Further, given the Tribunal’s finding that the appellant had no fear of persecution for his political opinion and/or religion and/or any other Convention reason if he were to return to India, there was simply no occasion for it to consider s 91R, which narrows the normal meaning of persecution as used by the Tribunal in announcing its conclusion. No error has been shown in the Magistrate’s rejection of this ground.

13. The sixth ground is that the Tribunal “was preoccupied and did not have a fresh look”, and failed to consider the country information in a proper way. The second part of this complaint has no substance. Having regard to the Tribunal’s reasoning, it is merely a complaint that the Tribunal used the country information in a way that did not suit the appellant’s case.

14. I cannot discern a jurisdictional error in the complaint that the Tribunal was “preoccupied”. I simply do not know what this is intended to convey. The claim that it did not “have a fresh look” seems like a complaint that it did not approach the appellant’s case with a mind open to persuasion; namely a case of bias or apprehended bias. As the Magistrate said, there was no evidence adduced before him of actual bias. Nor is there anything in the Tribunal’s reasons that suggests it did not bring an impartial mind to its decision making. No error appears in the Magistrate’s disposal of this ground.

15. The seventh ground is that the Tribunal acted illogically in concluding it was not satisfied that the appellant has a well founded fear of persecution if he were to return to India. The illogicality is said to reside in the Tribunal’s failure to weigh properly the fact that the appellant was the President of IUML, had been tortured by the CPI(M) supporters, and was not helped by the police because he is a Muslim. The Magistrate rejected this ground because the Tribunal had been unable, on the material before it, to make findings on the matters upon which the appellant based this ground of review. See [11] above. No error has been shown in the Magistrate’s decision on this point.

16. The eighth ground claims that the Tribunal failed to find that the appellant satisfied the four key elements required to come within the Convention definition of a refugee. The Magistrate correctly rejected this ground. The Tribunal identified the key elements of the definition at page 3 of its reasons. It then said that on the material before it, it was not satisfied that the appellant had a well founded fear of persecution. This ground simply complains about the result of the Tribunal’s decision, and seeks to argue about its correctness. It impermissibly seeks merits review.

17. The final ground is that the Tribunal failed to assess the appellant’s risk of future harm if he returned to India, and did not apply the “real chance” test. The Tribunal made findings, which were open to it, that the appellant was never a leading official of IUML and was never physically attacked by IUML supporters because of his religion and/or political opinion. Having regard to those findings that he had not suffered relevant harm in the past, the Tribunal concluded that he did not have a well‑founded fear of persecution if he returned to India. There was no failure by the Tribunal to apply the real chance test, and the Magistrate correctly dismissed this ground of review.

18. None of the grounds of review before the Magistrate, which I have treated the appellant as putting to me as grounds of appeal, having been made out, the appeal must be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:        8 August 2008

The appellants appeared in person.
Counsel for the First Respondent:	P Reynolds
Solicitors for the First Respondent:	Clayton Utz

Date of Hearing:	6 August 2008
Date of Judgment:	8 August 2008