SZMVT v Minister for Immigration and Citizenship

[2009] FCA 588

FEDERAL COURT OF AUSTRALIA

SZMVT v Minister for Immigration and Citizenship [2009] FCA 588

SZMVT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 163 of 2009

NORTH J
20 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 163 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	20 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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.

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 163 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	20 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court which was delivered on 10 February 2009.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 1 September 2008 which affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a protection visa.  The claims made before the Tribunal are set out at considerable length in the decision of the Tribunal, and it is sufficient for present purposes for me to summarise briefly the essence of the appellant’s claims.

2. The appellant is a citizen of India and of Muslim religion.  He was a member of the National Development Front (the NDF), a Muslim political organisation.  He was suspected of involvement in the death of a Hindu extremist who was a member of the Rashtriya Swayamsevak Sangh (the RSS), a Hindu extremist organisation.  That person, named Ravi, was killed in January 2007.  In response the RSS called a strike in 2007 and targeted Muslims.  The appellant said that the police were searching for him in relation to his involvement with the death of Ravi, and that a police raid of his home took place in December 2007 in relation to this incident.

3. The appellant claimed to have been attacked by members of the RSS in 2007 on two occasions for his presumed part in the death of Ravi.  He also claimed that there was systematic persecution of Muslims in India and, as a result, he feared that if he returned to his home State of Kerala he would experience persecution in the future.  His claims were therefore grounded in a fear of persecution on the grounds of his perceived political opinion and religion.  The Tribunal canvassed the evidence given before it at length.  It found that the attacks claimed by the appellant had not been made out.

4. The Tribunal explained carefully the inadequacy of the evidence relating to the attacks and, in particular, the failure of the appellant to identify those involved.  The Tribunal rejected the claim that the police had been searching for the appellant.  The appellant was never charged, and the Tribunal noted that if the police had truly been searching for the appellant they had ample opportunity to arrest him between the time when Ravi died in January 2007 and December 2007 when the alleged raid by the police occurred.

5. The Tribunal rejected the appellant’s claim that he feared persecution in India because the appellant gave evidence that in August 2007 he had left India for Sri Lanka, Malaysia and Thailand, but returned to India after those trips.  The Tribunal then examined independent country information, and concluded from it, that there was no systematic persecution of Muslims in India. 

6. The appellant filed an application for review in the Federal Magistrates Court on 17 October 2008.  The grounds were as follows:

   1.The Tribunal decision ‘Findings and reasons’ not properly justified by the Migration Act1958 (Cth) [(“the Migration Act”)]. The Tribunal rejected my claims without considering my oral evidence in relation to major issues. The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.

   2.The Tribunal member 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:

   a.if failed to address the residual question as to how it should hold in the event that its finding that the applicant was not at risk of persecution was wrong; and

   b.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 applicant’s claims are plausible, which was the case here, and the Tribunal failed to consider this.

   3.That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims. 

   4.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

   Particular of Grounds

   a.The Tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS because of the applicant involved with NDF.

   b.In relation to above the Tribunal did not consider that every time I travelled to outside India, I never used any of the Kerala airport which were very [close] to my place, but choose to use Chennai airport to avoid the persecution.

   c.I have given adequate evidence to the Tribunal that the reason I was accused of involved in the killing of RSS activist, Ravi because my truck was used to transport workers and material for the NDF and RSS people had seen my truck in Tirur at the time of RSS activist was killed.

   d.Therefore the applicant submit that the Tribunal failed to analyse properly future harm the [applicant] may face if he return to India.  Hence, due to this failure, the Tribunal had [committed] a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

   5.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of the Migration Act 1958.

7. Each of these grounds was dealt with by the Federal Magistrate in detail, and each was rejected.  In view of the matters raised by the appellant on this appeal it is not necessary to set out the basis upon which the Federal Magistrate rejected the application.  It is sufficient to say that in relation to each of the grounds rejected by the Federal Magistrate there is no basis for holding that the Federal Magistrate erred. 

8. On 27 February 2009 the appellant filed a notice of appeal in this Court.  The grounds of appeal stated in the notice were as follows:

   1.The single Judge of the Federal Magistrate Court in his Honours judgment delivered on 10 February 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

   2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal, it is clearly evident that the Tribunal has not attended any evidence in relation to applicant claims and thus its decision influenced by sufficient doubts. 

9. On 18 May 2009 the appellant filed a written submission as follows:

   1.The honourable FM failed to take in to consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant’s circumstances and the consequence of the claim.

   2.The Tribunal did not give to the applicant before the hearing the Background information that it had about the history of religious freedom and relating other information. The Tribunal used this information while the decision was making, this was against section 424A of the Migration Act.

   3.The Tribunal did not use the country information as specific, however the general information gathered from DFAT was backdated and the Tribunal member used those backdated information to weight against applicant claims.

   4.The Tribunal failed to consider an integer of the applicant claim, in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.

   5.The Tribunal has failed to investigate applicant claims, specially the ground of persecution in India.  Therefore, the Tribunal’s decision dated 1 September 2008 was effected by actual bias constituting judicial error.

   Therefore the applicant submits that the Tribunal failed to analyse properly the ‘future harm’ the applicant may face if he has to go back to India.

   Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

10. At the hearing of the appeal the appellant was assisted by an interpreter in the Malayalam language.  He was not legally represented.  The appellant was asked to address each of the grounds of appeal and the written submission paragraph by paragraph.

11. The appellant explained that the written submission had been compiled for him by a friend.  Unsurprisingly, he did not understand the points made in most of the submissions.  Rather, the appellant sought to explain that the Tribunal should have accepted the evidence which he gave.  For instance, he said that the incidents relating to the strike by the RSS had been reported in the local paper, and the Tribunal was wrong for rejecting the evidence simply because his name was not noted in the newspaper report.  He repeated the danger to Muslims in India, and said that the Tribunal did not take this seriously.

12. In summary, the appellant contended that the Tribunal had wrongly rejected his version of the facts.  This is not a criticism which can result in relief in this Court.  The role of fact finding is a role conferred on the Tribunal.  Nothing which the appellant has said at the hearing of the appeal indicates any jurisdictional error committed by the Tribunal.  Rather, the submissions on the appeal demonstrate a disagreement of the appellant with the fact findings made by the Tribunal.  That is not a ground upon which the appeal can succeed. 

13. Consequently, the appeal must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        1 June 2009

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	20 May 2009
Date of Judgment:	20 May 2009