SZLXA v Minister for Immigration and Citizenship

[2008] FCA 1253

FEDERAL COURT OF AUSTRALIA

SZLXA v Minister for Immigration and Citizenship [2008] FCA 1253

Migration Act 1958 (Cth) s 422B, s 424A, s 425

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited
SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659 cited

SZLXA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD542 OF 2008

LOGAN J
8 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD542 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLXA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the First Respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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	NSD542 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLXA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT

1. The Appellant is a citizen of India.  He came to Australia on 21 June 2007.  Less than a week later, on 27 June 2007, he lodged an application for that type of visa under the Migration Act 1958 (Cth) (“Migration Act”) which is known as a Protection Visa. A delegate of the Minister for Immigration and Citizenship, who is the First Respondent to this appeal, refused that application on 1 August 2007. Later that month, and as was his right under the Migration Act, the Appellant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision. 

2. On 5 December 2007, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant to the Appellant a protection visa.  That decision and the reasons for it were communicated to the Appellant by way of a letter from the Tribunal dated 3 January 2008.  The Appellant then sought the judicial review of that decision by the Federal Magistrates Court.  His application for review was dismissed by that Court on 31 March 2008 for reasons which were then published.  From that decision he appeals to this Court. 

3. As set out in the notice of appeal filed on 17 April 2008, the grounds of appeal are as follows:

   Grounds

   2.The single Judge of the Federal Magistrates Court in his Honours judgment delivered on the 31 March 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.

   3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

   4.The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. [sic]

4. The submission was made on behalf of the Minister that the grounds in the notice of appeal are each without any particularisation whatsoever.  That is true, but it does not seem to me that it would be a fair way to dispose of the appeal just to regard the grounds as so general as to not admit of a comprehensible challenge to the Magistrate’s decision. 

5. The Minister also approached the task of responding to the appeal in this way.  In particular, regard was had to the way in which the Appellant had developed his case before the Federal Magistrates Court.  That seems to me to be a very proper stance to take in the circumstances.  In that regard, I also take into account the oral submissions which the Appellant made with dignity and succinctness.  It was quite apparent from those, that like many persons without formal legal training, he found difficulty in distinguishing between the fact finding role consigned to the Tribunal, the judicial review role consigned to the Federal Magistrates Court, and the role which this Court has in deciding whether a Magistrate erred in law.

6. When one reads ground 2 of the notice of appeal, in conjunction with the case as developed before the Federal Magistrate, it becomes apparent that the particular concern which the Appellant has is that the Federal Magistrate ought to have held that the Tribunal breached s 424A of the Migration Act. In other words, his complaint about a denial of procedural fairness focuses upon whether the Tribunal ought to have put to him in writing for comment particular “information.” It is to be remembered that s 422B of the Migration Act provides that the provisions which follow give the relevant procedural fairness content to the obligations which fall on the Tribunal. 

7. The learned Federal Magistrate dealt with the s 424A complaint at para 34 and para 35 of his reasons for judgment in the following way.

   The Applicant claimed in his affidavit that the Tribunal had not given him any information which it had used against him. Insofar as this is a claim of a breach of s.424A of the Migration Act, in my view, no breach has been made out. The Tribunal's decision was based on the Applicant's own evidence to the Tribunal and Independent Country Information. Both of those matters come within s.424A(3) of the Act and therefore are not covered by s.424A(1).

   Accordingly, there was no obligation on the part of the Tribunal to put information to the Applicant in writing for his comments. The claim of a breach of s.424A of the Migration Act is therefore rejected.

8. A critical part of the Tribunal’s reasons seems to be that which appears under the heading, “Temple Committee” at pages 126 and 127 of the appeal book, which is as follows:

   Temple Committee

   The Applicant fold the Tribunal that in 2004, he and his father were elected presidents of a Sikh temple.  He said that in December 2004 some Hindu Jats wanted to become part of the Committee and they told them they could not enter their Sikh temple.  He said in 2006 when they were sitting in the temple they were assaulted by the Hindu Jats.  He claims they attempted on 2 occasions to lodge a complaint with the police but the police were Hindus and no action was taken.  He claimed that in about September 2006 he was beaten by the Hindu Jats and taken to hospital and again when he went to the police to lodge a complaint no action was taken.  He said one day his father received a phone call and his grandfather’s brother received a message that the Hindu Jats would kill the visa applicant.

   Asked why Hindi Jats would want to be a part of their Sikh temple the applicant replied that they later during the hearing that it was still unclear way Hindu Jats would want to be a part of the Sikh temple, the applicant replied that they wanted to mix up the religion and to draw people’s attention to the Hindu religion.  He said that some Hindu Jats wear turbans like Sikhs and therefore they look like Sikhs but actually their aim was to mix up the Sikh religion with the Hindu religion.  The Tribunal found the Applicant’s response about an important part of his claim vague and not compelling.  In an attempt to elicit evidence that would be better applicant whether the Hindu Jats were part of a movement called the Dera Sasha Sauda and the Applicant confirmed that he was not talking about this group and that the Hindu Jats he was referring to were a different group.  In a further attempt to elicit evidence from the visa applicant about the reason for the conflict the Tribunal drew the applicant’s attention to his written statement which claimed that the Hindu Jats wanted to become part of the committee and that they wanted the temple to come under an authority in Haryana rather than under the authority of the Shiromani Gurdwara Parbandhak Committee in Armitsar.  The applicant replied that that was correct and that he forgot to mention that.  Asked whether any Sikhs wanted the temple t come under the control of an authority in Haryana rather than to be controlled by the SGPC, the applicant replied that no Sikhs wanted that to occur.  The Tribunal referred to its independent information which stated that in fact it was some Sikhs in Haryana that wanted a separate committee to be set up for managing Sikh religious places in Haryana.  The applicant replied that that was not the case and that was the Hindu Jats that were pushing s separate committee in Haryana and that there were no reports of Hindus pushing for such a committee. The applicant also told the Tribunal that he had copies of the police reports he made and evidence that he attended hospital.  The applicant did not submit evidence of attending a police station.  As noted above, he submitted a document that appeared to be in a script for medication and while difficult to read appeared to note ‘six stitches’ and ‘leg pain’.  While this document is evidence that the applicant has suffered some injury or condition requiring medication, it is not corroborative evidence of the claimed circumstances that led to the need for medication and it does not overcome the problems the Tribunal has with the applicant’s evidence.  Due to the fact the applicant’s claims about the committee are not supported by independent country information, and he has not provided any evidence of attending the police station despite stating he would do so, the Tribunal is not satisfied that the applicant’s claims are credible.  As a result, the Tribunal finds that there is not a real chance that the applicant will be persecuted if he returns to India on the basis of his involvement with the Sikh temple committee or his opposition to the involvement of any Hindu Jats in the affairs of the Sikh temple or its committee.

   The applicant’s more general claims of mistreatment by Hindus because he is a Sikh, for example by being forced to speak a language other than his mother tongue and the police not pursuing complaints by Sikhs against Hindus because the police and ruling Congress party government is Hindus Government, are also not supported by the independent country information.  As noted above, Haryana has the second highest Sikh population and one of the highest percentages of Punjabi speakers after Punjab.  Further while many Sikhs supported the Indian National Lok Dal (INLD) in the 2005 elections, Sikhs in Punjab have also been known to support the Congress Party.

9. The Tribunal’s conclusion was that there was not a real chance that the Appellant would suffer serious harm from Hindus or the police if he returned to India.  That had been at the centre of his claim.  The Appellant provided to the Tribunal a medical certificate to which reference is made in the passage which I have quoted, which certificate appears on page 105 of the appeal book.  The Appellant drew attention to this medical certificate in his oral submissions.  It is evident from the Tribunal’s reasons that the Tribunal accepted the medical certificate as genuine and that the Appellant’s account of having suffered an injury was accepted.  What was not accepted though, by the Tribunal, were the circumstances in which it was said that the injury had occurred.  The medical certificate itself is silent on that subject. 

10. In the reasons for judgment which I delivered yesterday in SZJXM v Minister for Immigration and Citizenship, matter number NSD716 of 2008, I collected authorities in this Court and in the High Court which bear upon the construction of s 424A and in particular, what comprises “information” for the purposes of that section. Though the learned Magistrate does not refer to particular supporting authority for the propositions in para 34 and para 35 of his reasons for judgment, those propositions are, having regard to the authorities to which I refer in case SZJXM, sound. To the extent that the procedural fairness complaint centres upon a breach of s 424A, it is therefore not made out.

11. Section 425 of the Migration Act also has a procedural fairness resonance, in the sense that the hearing which the Tribunal offers an applicant must be real and meaningful. In this case though, and as the Federal Magistrate noted at para 35 of his reasons, there was compliance with s 425 in the invitation to the Appellant to attend the hearing, in the provision of an interpreter in his own language at the hearing and in the provision of an opportunity for him to give evidence about his claim. There was no element of surprise. The end result before the Tribunal, was that the Tribunal was not satisfied that the Appellant had a well‑founded fear of persecution for reasons of his political opinion, imputed political opinion, religion, membership of a particular social group, or any other Convention reason now, or in the foreseeable future. That absence of satisfaction was based, in part, upon an assessment made by the Tribunal of the Appellant’s overall credibility and an intersection between his account, or perhaps an absence of intersection between his account, and third party country information available to the Tribunal.

12. The Tribunal was entitled to reach the views that it did and it is no part of the function of the Federal Magistrate on judicial review, much less this Court on appeal, to seek to revisit findings of fact.  What I have just stated also disposes of ground 3 in the notice of appeal. 

13. Ground 4 in the notice of appeal seeks to find error on the part of the Magistrate in not in turn finding error on the part of the Tribunal in applying the principles laid down by a Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Though not stated in so many words, I take it, as did the Minister in his submissions, that this is a reference to what might, perhaps inelegantly, be described as the “relocation” principle in refugee law.

14. After Randhawa, the High Court had occasion to consider that particular principle last year in SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659. At pages 1664 and 1665, para 26, Gummow, Hayne and Crennan JJ observed in their joint judgment:

    in particular cases, territorial distinctions may have an apparent connection with the particular reason for the asserted well founded fear of persecution.  There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of one nation state so that in some parts there is insufficient basis for a well founded fear of persecution.  However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography. 

15. They further observe, by reference to the particular background of that case, at para 32:

    The effect of the Tribunal’s stance was that the appellant was expected to move elsewhere in Ukraine, and live quite “discreetly” so as not to attract the adverse interests of the authorities in his new location, lest he be further persecuted by reason of his political opinions.  By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine.  It presents an error of law, going to an essential task of the Tribunal.  This was determination of whether the appellant’s fear of persecution was “well founded” in the Convention sense and thus for the purposes of s 36(2) of the Act. 

16. No such “sidestepping” intrudes upon the Tribunal’s finding of an absence of a well founded fear of persecution in this case.  It was not necessary, having regard to the particular views that the Tribunal formed of the Appellant’s claim, having regard to its assessment of his credibility and third party country information, for it to embark upon a consideration of relocation.  That is not to say that the Tribunal was in any way prevented from considering evidence in relation to relocation.  This it evidently did at the hearing, as its reasons evidence.  It is just that given the findings that it made, it was not then necessary for the Tribunal further to consider, in the context of the satisfaction concerning well founded fear of persecution, a question of relocation.

17. The Appellant made reference in oral submissions to a lack of awareness on the part of the Tribunal of the situation, as he knew it, in the Punjab.  The difficulty, though, with his submission is that it solicits scrutiny on the merits.  That is not permissible. 

18. It follows then, that in my opinion, the grounds of appeal are not made out.  The appeal must therefore 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 Logan.

Associate:

Dated:        18 August 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	DLA Phillips Fox

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