SZMZL v Minister for Immigration and Citizenship

[2010] FCA 843

FEDERAL COURT OF AUSTRALIA

SZMZL v Minister for Immigration & Citizenship [2010] FCA 843

Citation:		SZMZL v Minister for Immigration and Citizenship [2010] FCA 843
Appeal from:		SZMZL & Anor v Minister for Immigration & Anor [2010] FMCA 243
Parties:		SZMZL and SZMZM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 433 of 2010
Judge:		NORTH J
Date of judgment:		2 August 2010
Date of hearing:	2 August 2010
Date of last submissions:	2 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Appellants:	Appeared in person
Counsel for the First Respondent:	Mr Cleary
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 433 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZL
First Appellant

SZMZM
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	2 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs fixed at $2500.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 433 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZL
First Appellant

SZMZM
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	2 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 7 April 2010.  On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal dated 3 December 2009 affirming the decision of the delegate of the first respondent not to grant the appellants a protection visa. 

2. The appellants are husband and wife.  They are citizens of India from Kerala.  The claims made to the Tribunal were made in relation to the husband.  He will be referred to as the appellant.  The fate of the appeal for the wife depends upon success of the husband’s claim.

THE APPELLANT’S CLAIMS

1. The appellant was born in 1969.  The claims were made on the basis of religion, political opinion and membership of a particular social group.  The appellant claimed to be Roman Catholic by religion and a supporter of the Congress Party.  He also claimed to be a member of the Christian Other Backward Community in Kerala.  Between 1985 and 1987 he claimed he was involved with the Kerala Student Union, the student wing of the Indian National Congress.  At that time he claims that he was assaulted by opposition party followers.  Then, in 1988, he commenced mission activities including visiting hospitals, prisons, old age homes, donating blood, clothes, food, books and uniforms to children of poor families who were disadvantaged by the Hindu upper castes. 

2. Between 1997 and 2005 the appellant worked in Abu Dhabi.  Then, in late 2006, having returned to India, he started a bakery business.  The appellant claimed to have experienced a number of serious problems in relation to this business.  He claimed that his application for a building licence, power and water supply were delayed because of his previous activities in the student union.  Then he said that the Communist Party of India (Marxist) demanded that he stop employing certain workers whom he had recruited.  The appellant said that in March 2007 the Communist Party of India and local council members demanded that he provide funds for the party, which he refused.  He said that he was badly beaten and that he was warned not to go to the police.  He also claimed that he had been assaulted by Hindu extremists in clashes between Hindus and Christians over the building of a Hindu monument or shrine.

3. The appellant claimed that he had lost income and could not run his business as a result of threats from the Communist Party of India.  He said that the Kerala Police could not protect him from these problems. 

THE DECISION OF THE TRIBUNAL

1. The Tribunal accepted a considerable part of the evidence of the appellant.  It accepted that the appellant was Roman Catholic and that he was known as a supporter of the Congress Party.  It accepted that he was involved in politics as a student and that he was involved in violent clashes at that time. 

2. However, the Tribunal determined that this early student history had no lasting effect on the life of the appellant.  The Tribunal reached this conclusion because he had lived a stable life in India before leaving for Abu Dhabi, had returned voluntarily to India year after year and had decided to return to India permanently in 2006.  Any problems therefore that occurred following 2006 were not related to his activities in his student days. 

3. The Tribunal also determined that the incident concerning the construction of the Hindu shrine related to 1989.  This conclusion was reached as a result of an assessment of all the evidence of the appellant.  The Tribunal found that this was an isolated incident and that no disputes had arisen since.  The Tribunal drew on information that relations between Hindus and Christians were, generally, peaceful.  There was evidence both of agreement by the appellant of this view and also independent country information to that effect.  The Tribunal found that there was no evidence to support the claim that the appellant’s church outreach activities attracted the attention of the Communist Party of India.  The Tribunal thus rejected the appellant’s contention that he feared persecution on the basis of religion either from the Communist Party of India or from Hindu people in Kerala.

4. The Tribunal then considered whether the difficulties which the appellant claimed in relation to his business activities after 2006 gave rise to a fear of persecution for any other Convention reason.  The Tribunal considered this aspect on the basis that the appellant fell within the particular social group of “persons with money”, “business people in India”, or “returnees to India from abroad.”  Thus, the Tribunal’s starting point was to accept that the appellant fell within one or other of these groups.

5. There were a number of grounds upon which the Tribunal rejected this claim.  Although the reasoning of the Tribunal is not entirely clear, it seems that the primary basis was that it was not satisfied that the appellant had given reliable evidence about the events relating to his business activities.  The Tribunal pointed to a series of inconsistencies in his evidence in this regard. Furthermore, the Tribunal did not accept the contention that there was no effective protection against the activities, if they occurred, at the behest of the Communist Party of India.  Finally, the Tribunal examined an alternative basis for rejection, namely that the activities of those who threatened the appellant’s business were acts of criminal coercion outside any Convention ground. 

THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT

1. The appellant was served with a notice to show cause, filed by the respondent in the Federal Magistrates Court on 24 December 2009. There were two grounds of substance relied upon by the appellant in the Federal Magistrates Court. The first ground was that the Tribunal had acted in breach of s 424A of the Migration Act 1958 (Cth) (the Act). The appellant argued that he was entitled to be notified in writing of the Tribunal’s view that some of his evidence was inconsistent with other evidence.

2. The federal magistrate rejected this contention, holding that there was no obligation under the section for the Tribunal to disclose its thought processes. The federal magistrate determined that the decision of the Tribunal was based on information given by the appellant during the review process, on material provided by the appellants, and on independent country information. All of these sources of information are exempt from disclosure under s 424A of the Act.

3. The federal magistrate also held that there was no breach of s 425 of the Act.  The federal magistrate said: 

   18.Both applicants were invited to attend an oral hearing before the Tribunal following the remittal of the matter to the Tribunal by the Federal Court.  The first applicant took up that opportunity and attended an oral hearing on 17 November 2009.  The second applicant elected not to attend.  The first applicant was assisted at the Tribunal hearing by an interpreter.  There was nothing in the available record of what occurred at the hearing which would have warranted or obliged the Tribunal to invite the applicants to a second hearing.  The case is clearly distinguishable from the decision of the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152. The first applicant himself conceded in oral argument before me today that he considered the hearing opportunity afforded him on 17 November was adequate.

1. The federal magistrate then reviewed the reasoning of the Tribunal and found that there was no jurisdictional error committed by the Tribunal. 

THE PROCEEDING IN THIS COURT

1. On 23 April 2010 the appellants filed a notice of appeal to this Court against the orders made by the federal magistrate.  The grounds of appeal were stated as follows:

   1.        Jurisdictional error.

   2.        Breached of natural justice.

   3. Breached of section 424A of the Migration Act.

1. The appellants filed written submissions in support of the appeal. They complained of breaches of s 424A and s 425A of the Act in terms which mirror the complaints determined by the federal magistrate. I agree with the manner in which the federal magistrate dealt with the allegations of breach of s 424A and s 425 of the Act.

2. The appellant gave some short oral evidence on the appeal.  First, he said that he was only given two hours to give evidence before the Tribunal and could not give all the details of his troubles in India in that time.  This appears to be a new ground of criticism not raised before the federal magistrate.  The appellant would therefore require leave to raise such argument on this appeal.  I would refuse that leave on the basis that such an argument would require the calling of evidence which is presently not before the Court. 

3. Then the appellant said that the Tribunal determined that his evidence was not right but did not say why it was not right. The appellant said that he did not get information about what was wrong with his presentation. I take this to be a complaint about the failure of the Tribunal to comply with s 424A, that is to say a failure to draw attention to the thought processes of the Tribunal. This contention was considered by the federal magistrate and, as explained earlier, was rightly rejected.

4. Finally, the appellant said in his oral submissions that his experiences with the Communist Party of India really happened even though the Tribunal said they did not.  The appellant contended that the Tribunal wrongly did not consider his story a real story.  This submission seemed to quarrel with the finding of the Tribunal on the merits.  It does not appear that such a submission was specifically made to the federal magistrate, and I would refuse leave to raise this argument at this stage of the appeal.  In any event, it seems to quarrel with the fact findings of the Tribunal, a complaint not open in an application for review.

5. To the extent that the appellant has relied upon the failure of the Tribunal to comply with s 424A and s 425 of the Act, I agree with the reasoning of the federal magistrate. The Tribunal complied with s 424A and s 425 of the Act. I also agree with the federal magistrate that the decision of the Tribunal is not affected by jurisdictional error. The order of the Court will be that the appeal is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       11 August 2010