SZNHP v Minister for Immigration and Citizenship

[2009] FCA 998

FEDERAL COURT OF AUSTRALIA

SZNHP v Minister for Immigration and Citizenship [2009] FCA 998

SZNHP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 629 of 2009

GRAHAM J
18 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 629 of 2009

BETWEEN:

SZNHP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	18 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent Minister’s costs.

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
GENERAL DIVISION	NSD 629 of 2009

BETWEEN:

SZNHP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	18 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who is identified for the purposes of this appeal as ‘SZNHP’, was born in Nileshwar in India in January 1972.  His religion is that of a Muslim.  He has, on occasions, become associated with Hindus when pursuing his skills and knowledge as a swimmer.  He might be said to fall within a particular social group of Muslims who fraternise with Hindus. 

2. On 16 April 2008 he left India, departing from Mumbai airport, arriving in Australia at Perth on 17 April 2008.  On 14 May 2008 he lodged an application for a Protection (Class XA) visa.  In that application, in answer to the question ‘Why did you leave that country?’, he recorded the following:

   ‘MR: CHARKALAM ABDULLA (EX MINISTER OF KERALA) DISTRICT CHAIRMAN AND STATE LEADER OF INDIAN UNION MUSLIM LEAGUE (IUML), CONTINUOUSLY THREATEN ME AND MY FAMILY FOR THE LAST THREE YEARS. 

   THE NATIONAL DEMOCRATIC FUND (NDF) PARTY PEOPLE AND SO-CALLED GUNDAS SEVERAL TIMES ATTAKED (sic) ME AND MY FAMILY. 

   TO SAVE MY LIFE FROM THE IUML AND NDF GUNDAS I LEFT THE COUNTRY.’

   MR: CHARKALAM ABDULLA WAS BEHIND ME TO KILL ME.’

3. The appellant’s application was refused by a delegate of the Minister on 10 June 2008.  Thereupon, the appellant lodged an application for review with the Refugee Review Tribunal (‘the Tribunal’) on 7 July 2008.  He proceeded to supply the Tribunal with numerous documents recording his skill and ability as a swimmer. 

4. By letter dated 16 July 2008, the Tribunal informed the appellant that it had considered the material before it, but was unable to make a favourable decision on that information alone.  The Tribunal proceeded to invite the appellant to appear before it, to give oral evidence and present arguments on 20 August 2008.  Due to an inability of the presiding member to conduct a hearing on 20 August 2008, the hearing was rescheduled for 12 September 2008.  As that date fell within Ramadan, the appellant sought and secured a postponement of the hearing until 25 September 2008. 

5. On 25 September 2008 a hearing took place, which occupied approximately four hours.  As the hearing was incomplete, a further hearing was fixed for 23 October 2008, which proceeded on that date and occupied approximately another two and a half hours.  On 10 February 2009 the Tribunal member decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.  Notice of that decision was given to the appellant by letter dated 11 February 2009, to which a copy of the Tribunal’s Statement of Decision and Reasons was attached.

6. On 5 March 2009 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia.  By an Amended Application, filed 30 April 2009, the appellant provided different grounds of appeal from those included in the original application.  The grounds set forth in the Amended Application were as follows:

   ‘1.The Tribunal failed to analyse properly the “future harm” I, May face, if I have go back to India, Hence due to this failure, the Tribunal had committed a seriuuse (sic) jurisdictional error by failing to assess or carry out the real chance test before dismissing the applicants claim

   •The Tribunal failed to consider that I am having well founded fear because of My Religion and political opinion

   •The Tribunal found that I am a credible witness, the Tribunal also find that I am provided genuine documents to the tribunal (Court book page 261, Paragraph 2)

   •The Tribunal has found that I am a credible witness, and also found that some 14 years ago I had suffered harm which could be described as persecution, but that does not mean that Tribunal accept that all his evidence is true

   •I have given adequate evidence to the Tribunal that I was physically assaulted on several occasion, but the tribunal member failed to consider my genuine claim,

   2.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do)

   3.The Tribunal had acted illogically when concluded that “The Tribunal is not satisfied that the applicant has a well founded fear of persecution for his political opinion and/or religion and/or any other convention reason if he returns to India.  The Tribunal committed a clear jurisdictional error” because it failed to weigh properly the effect My claim,’

7. The Amended Application containing those grounds came before Federal Magistrate Emmett on 10 June 2009.  On that day, her Honour both heard and determined the application.  She ordered that the proceeding before the Federal Magistrates Court of Australia commenced by way of application filed on 5 March 2009 be dismissed and that the appellant pay the costs of the respondent Minister fixed in the sum of $5000. 

8. From that decision, the appellant has appealed to this Court.  The grounds of appeal specified in the Notice of Appeal were as follows:

   ‘1.The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal, The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.

   2.Te (sic) Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India,  This is a serious Jurisdictional error made by the Tribunal’

9. When invited to address the Court in relation to the grounds of appeal, no written submission having previously been lodged with the Court, the appellant who is quite fluent in English but from time to time turned to the interpreter for assistance, repeated, in effect, the case which he would wish to make were the matter before the Tribunal afresh.  He was critical of some of the factual findings made by the Tribunal member.  He expressed concern about State protection, and about an ability to relocate in other parts of India.  He sought another chance.  He did suggest that, on the two occasions when he was before the Tribunal, he had different interpreters, and he, without being critical of the relevant interpretation, was not sure that one of the interpreters expressed the feelings which he sought to convey properly.  His native language would appear to be Malayalam. 

10. By occupation, the appellant was a policeman before he left India.  The Tribunal member at [130] of her Statement of Decision and Reasons found the appellant to be a credible witness and found that the documents which he provided to the Tribunal were genuine.  However, at [127] she observed that the Tribunal does not have to accept uncritically all statements and allegations made by an applicant and at [139] she found, notwithstanding her finding that the applicant was a credible witness, that that did not mean that the Tribunal had to accept all of his evidence as true. 

11. The appellant’s family were associated with the Communist Party of India (CPI(M)) and in his student days the appellant was an active member of the Student Federation of India (SFI) being the student arm of CPI(M).  Another party was the MSF being a Muslim party.  The appellant claimed to have been involved in an altercation which followed a demonstration back in 1990 when the appellant was 18 years of age which resulted in the appellant and a friend being seriously injured and admitted to hospital.

12. The Tribunal accepted the claim of the appellant in that regard and further accepted that he reported the matter to the police.  The appellant claimed to have been involved in a further incident in 1994 when he was travelling on a bicycle with a friend and they were attacked by active members of the IUML being ‘Jafar’ and ‘Siddiq’.  The appellant claimed that his legs or at least one of them had been broken, that he was seriously injured and admitted to hospital.  The Tribunal accepted the appellant’s claims in that regard and further that he reported the attack to the police and that the police caught the ‘Gundas’ who were involved.

13. The Tribunal accepted that the appellant was seriously attacked on two occasions when at the college and once after leaving college.  However between 1994 and 2008 there were no physical attacks upon the appellant.  In the course of his submissions he asserted today that he had been careful about his own movements for 14 years so that was the reason why the potential wrong-doers did not catch him.  Plainly it is inappropriate for this Court to address the matter on a merits basis and I do not intend to do so.  The appellant claimed that there were regular oral threats but the Tribunal proceeded to find that whilst there may have been threats on the telephone after he joined the police force such threats were not regular or frequent or continuous.

14. The Tribunal concluded that the appellant did not have a subjective fear of persecution during the 14 years between 1994 and 2008 when he progressed from being 22 years of age to being 36 years of age.  The Tribunal accepted the evidence of the appellant that he did not leave India sooner having held a passport for many years because he did not view the threat from the Muslim group, that is to say an extremist Muslim group, as being very serious.  

15. The appellant claimed and the Tribunal accepted that the appellant was attacked again by a group of Muslim people on 25 March 2008. 

16. The Tribunal had concerns about the appellant’s evidence that he had been attacked by 10 or 12 people.  It also had concerns about the appellant’s evidence that at the same time as he was being attacked his wife received a threatening telephone call that if an attempt was made to inform the police they would be killed.  It would appear that the appellant spoke to the police about reporting the matter because in the Tribunal member’s reasons at [147] she said:

    ‘… but because he was planning to come to Australia he told them not to worry about it …’

17. The Tribunal member did not accept the appellant’s evidence that the IUML, the MDF and SIMI had involvement in the attacks upon him.  The Tribunal member held that there was no official element to the attack upon him in March 2008.  It found that the perpetrators ‘acted in a private capacity’.  The Tribunal member was unwilling to accept that Mr Abdullah lay behind the attack on 25 March 2008 because the appellant’s evidence had been that the attackers were not personally known to him and he was unable to identify them. 

18. A finding was made that an investigation was pending.  The Tribunal further found that there was no deliberate withholding of protection for the appellant.  The Tribunal also found that the police had registered the complaint following the discussion with the appellant about it. 

19. There are other aspects of the appellant’s evidence which the Tribunal did not accept notwithstanding the general finding of credibility in relation to what the appellant had to say.

20. The Tribunal found that the government did not tolerate the attacks and was not complicit in them. The Tribunal also found that the appellant could reasonably be expected to relocate within India.  The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.  Accordingly, it affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.

21. Decisions upon the grant or refusal of protection visas are made in the first instance by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’). Section 65 of the Act relevantly provides:

    ‘65(1)  After considering a valid application for a visa, the Minister:

    (a)       if satisfied that:
    …

    (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied;  …

    …
    is to grant a visa; or

    (b)       if not so satisfied, is to refuse to grant the visa.’

22. The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly, for present purposes, provides as follows:

    ‘36(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’

23. The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Convention’.

24. As has been said many times, proceedings in the Tribunal are not adversarial, but, rather, inquisitorial.  The Tribunal is not in the position of a contradictor of the case being advanced by an applicant.  The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 (‘Applicant S154/2002’) at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]).

25. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on.  It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal, and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57] – [58]).

26. The question of who answers the description of a ‘refugee’ is relevantly determined by Article 1 of the Convention which relevantly provides:

    ‘A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:

    …

    (2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …’

27. The Convention does not apply in relation to persecution for one or more of the reasons mentioned unless:

    (a)       that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b)       the persecution involves serious harm to the person; and

    (c)       the persecution involves systematic and discriminatory conduct.

    (See s 91R(1) of the Act).

28. Instances of ‘serious harm’ were provided by s 91R(2) of the Act. These included:

    (a)       a threat to the person’s life or liberty;

    (b)       significant physical harassment of the person;

    (c)       significant physical ill-treatment of the person.

29. Section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances.  If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution (per Callinan and Heydon JJ in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 (‘VBAO’) at [49] and [50]; see also per Gleeson CJ and Kirby J at [3]). The term ‘threat’ connotes ‘risk’ in the sense of danger or hazard (per Gummow J in VBAO at [18]). ‘Threat’ where used in s 91R(2) means a likelihood of harm and the focus should be upon future harm (see per Gleeson CJ and Kirby J in I at [1]-[3]).

30. Nothing that has been said by the appellant in his submissions demonstrates any jurisdictional error on the part of the Tribunal member. The ultimate question under s 65 of the Act is one of satisfaction. The appellant is not entitled to a merits review where the Tribunal’s lack of satisfaction may be put in issue. In my opinion the appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        2 September 2009

The Appellant appeared in person.

Counsel for the First Respondent:	T L Wong
Solicitor for the First Respondent:	DLA Phillips Fox

The Second Respondent filed a submitting appearance.

Date of Hearing:	18 August 2009
Date of Judgment:	18 August 2009