SZNIE v Minister for Immigration and Citizenship
[2009] FCA 1400
•26 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNIE v Minister for Immigration and Citizenship [2009] FCA 1400
SZNIE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 991 of 2009
MCKERRACHER J
26 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 991 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNIE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
26 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the first respondent to be fixed at $3610.
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 991 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNIE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
26 NOVEMBER 2009`
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a citizen of India. He arrived in Australia on 9 July 2008. On 21 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application on 19 November 2008. On 4 December 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the delegate’s decision and the appellant sought judicial review in the Federal Magistrates Court.
This is an appeal against the judgment of a Federal Magistrate delivered on 20 August 2009 (SZNIE v Minister for Immigration & Anor [2009] FMCA 866). His Honour dismissed the application for judicial review handed down on 12 February 2009.
THE APPELLANT’S CLAIMS
The appellant claimed to have a well-founded fear of persecution because of his religious beliefs. He claimed that after the Communist Party of India (Marxist) (CPI(Marxist)) came to power in 2006, troublemakers attempted to incite violence on buses. He claimed that in February 2008 he was travelling with his sister on a bus when a group of Muslim goondas boarded the bus and demanded that any Christians on board identify themselves. He stated that he and his sister did not respond, however the group attacked his sister. He claimed that the bus driver drove the bus to a police station in the Muslim part of town and the police arrested the five attackers as well as the appellant and his sister. He stated that everyone was released and that the Muslim attackers were warned to stay away from him and his sister.
The appellant claimed that in March 2008 he was abducted by the same group of Muslim men and that a Muslim doctor took a blood sample from him. He claimed that he was advised by a man that his abductors intended to remove his kidneys, eyes and other body parts before cremating his body. He stated that the man allowed him to escape and advised him to flee the country. He stated that he went into hiding before fleeing the country. He claimed that he would be killed if he returned to India.
BEFORE THE TRIBUNAL
The Tribunal accepted that the appellant is a Catholic. It also accepted that he was harassed by Muslims on a bus in 2008 and that he was later kidnapped by criminals for the reasons he provided. However, it did not accept that he was denied protection by the authorities in India or that he was at risk of harm by Muslims, Muslim criminals, the authorities, the police, the communist government in Kerala, or Hindu extremists, because of his Christianity. The Tribunal was satisfied, after considering information from external sources, that citizens in India have access to a reasonable level of protection provided by the State. The Tribunal did not accept the appellant’s claim that the police in Kerala collude or co-operate with criminals in targeting Christians. The Tribunal formed the view that the authorities in Kerala are responsive to the protection needs of Christians. The Tribunal was satisfied that if the appellant had approached the authorities in Kerala, or elsewhere in India, to report the kidnapping, he would have been provided with a reasonable level of protection.
The Tribunal was also satisfied, after considering information from external sources, that the appellant could freely and safely practise his religion in Kerala without adverse interest from any of the individuals or groups he feared. The Tribunal accepted that communal violence between religious groups does occur in India but was satisfied that the authorities in Kerala provide a reasonable level of protection at times of communal violence.
The Tribunal was not satisfied that the appellant faced a real chance of serious harm in India for reasons of religion or any other Convention reason.
THE FEDERAL MAGISTRATES COURT
Before the Federal Magistrate the appellant raised the following grounds:
1.Jurisdictional error
2.Breach of procedural fairness
3.Breach of natural justice.
The Federal Magistrate noted that the appellant had not provided an amended application, though ordered to do so, and therefore his claims were not particularised. His Honour noted that the appellant had provided a bundle of documents dealing with matters that he had raised before the Tribunal, but found that it was no more than a further impermissible argument as to the merits of the case. His Honour held that the Court was not permitted to indulge in further merits review. His Honour was satisfied that the decision of the Tribunal was open to it on the evidence before it and that no jurisdictional error was apparent.
GROUNDS OF APPEAL
The notice of appeal raises the following grounds:
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-The) 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
In argument before me the appellant stressed that he would like the opportunity to go back to the Tribunal to adduce more evidence because nothing had changed in India and he was still at risk. I note that in the Federal Magistrates Court his Honour explained to the appellant the nature of the review in that Court and the fact that it was confined to jurisdictional error. The expression jurisdictional error was actually used by the appellant in the course of submissions before me but clearly his main interest was in seeking the opportunity to provide some additional evidence over and above the evidence previously provided. It was not apparent from the materials that he had not had a proper opportunity to adduce all relevant evidence at the previous hearing before the Tribunal.
ANALYSIS
The grounds raised by the appellant are largely a claim for a merits review of the Tribunal decision. As stated, the Tribunal accepted that the appellant was harassed by Muslims on a bus in 2008 and was later kidnapped by criminals for the reasons he provided. However, it did not accept that he was denied protection by the authorities in India or that he was at risk of harm in Kerala because of his Christianity. As to this, the Tribunal said (at [56]):
The Tribunal finds that it is mere speculation on the part of the applicant that the police were implicated in his kidnapping, or that they supported the activities of the criminals who kidnapped him, or that they will seek to harm him in the future because they want to conceal the kidnapping. The Tribunal finds that on the one occasion when the applicant did approach the police and seek protection, regarding the incident on the bus, the police acted appropriately. The Tribunal is satisfied that if the applicant approached the authorities in Kerala, or elsewhere in India, to report the kidnapping, he would have been provided with a reasonable level of protection by the authorities. The Tribunal is satisfied that if the applicant requires protection in the future, from any of the persons he fears, he will have access to a reasonable level or protection provided by state in India.
The Tribunal was satisfied, after considering information from external sources, that citizens in India have access to a reasonable level of protection provided by the State and that the authorities in Kerala were responsive to the protection needs of Christians. The Tribunal was also satisfied that the appellant could freely and safely practise his religion in Kerala without adverse interest.
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court in dealing with judicial review of an administrative decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259. The Court must beware of turning a review of the reasons of the decision-maker into a reconsideration of the merits of the decision: Wu Shan Liang. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
There are no errors of law discernable in the Tribunal decision. The Tribunal identified all of the issues pertinent to the review and discussed those with the appellant at the hearing. Its decision was based on the information in his visa application, his evidence given to the Tribunal, and the independent country information it obtained. Such information does not attract any obligations under s 424A(1) as it comes under the exceptions contained in s 424A(3). Further, the Tribunal’s choice and assessment of independent country information is a factual matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. It is not required to accept claims of the appellant that are inconsistent with the information regarding the situation in the appellant’s country of nationality: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The weight the Tribunal gives to any piece of evidence is a matter for it to decide: NBKT v Minister for Immigration and Citizenship & Multicultural & Indigenous Affairs (2006) 156 FCR 419.
The Tribunal complied with s 425 by putting the dispositive issues to him at the hearing. Its findings were based on a careful analysis of his evidence and were open to it on the evidence before it. Further, the Tribunal correctly set out the law at the start of its reasons for decision and correctly applied that law to its findings. No error is disclosed in the approach of the Tribunal.
In relation to the appellant’s complaint that the Federal Magistrate failed to consider the grounds of his application, such a complaint cannot be made out. Before his Honour the appellant merely raised the following grounds:
(1) Jurisdictional error
(2) Breach of procedural fairness
(3) Breach of natural justice
The learned Federal Magistrate records that at the hearing the appellant made oral submissions which went to the merits of his case. He claimed that the Tribunal misunderstood his case, in that it did not accept his evidence. His Honour found that the Tribunal did accept some of the claims of the appellant and did not reject his evidence on the basis of credibility. Rather it found that he could expect to receive adequate state protection in Kerala.
No error of law can be found in the above reasoning of the Federal Magistrate in dismissing the application for judicial review of the decision of the Tribunal. Nor can any jurisdictional error be detected in the decision of the Tribunal in affirming the decision under review.
In my opinion, the approach of the Federal Magistrate and his Honour's conclusion is not shown to be erroneous.
CONCLUSION
The appeal will be dismissed. The appellant is to pay the costs of the first respondent to be fixed at $3610.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 26 November 2009
The Appellant represented himself. Counsel for the First Respondent: R Francois Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 26 November 2009 Date of Judgment: 26 November 2009
5
0