SZNLU v Minister for Immigration and Citizenship
[2009] FCA 1251
•4 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNLU v Minister for Immigration and Citizenship [2009] FCA 1251
SZNLU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 784 of 2009
COLLIER J
4 NOVEMBER 2009
BRISBANE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 784 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNLU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
4 NOVEMBER 2009
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 784 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNLU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
4 NOVEMBER 2009
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal against the decision of Scarlett FM delivered on 13 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 18 March 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 22 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 18 November 2008. On 16 December 2008 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed that his brother was a gang leader and a criminal and had been involved in an attack on a police station resulting in the death of a policeman. The appellant stated that at the time this occurred he was in the UAE for work, however he returned to India in 2006 as he was unable to find another job. He claimed that he was arrested by the police in March 2008 and questioned about photos/videos which had been taken by his brother on the appellant’s video camera. He claimed that he was abused and attacked by the police, and that he was detained until his brother broke him out of detention. The appellant stated that his brother informed him the video camera had been used to film police officers engaging in drug trafficking and frequenting brothels. He stated that his brother took him to his sister’s house and then his brother-in-law helped him to escape to Tamil Nadu by car. He claimed that he was in hiding in Poona until he fled to Australia.
PROCEEDINGS BEFORE THE TRIBUNAL
The Tribunal noted that there were a number of discrepancies between the appellant’s claims to the Department and his evidence before the Tribunal, however it gave the appellant the benefit of the doubt and accepted that his oral evidence at the hearing represented the true version of his claims. The Tribunal stated that it did not draw any adverse inference from the inconsistencies between the appellant’s written claims and his oral evidence.
The Tribunal accepted that the appellant was forcefully detained and mistreated by police officers in April 2008 and that his brother broke into the compound, setting him free and assisting him to leave Kerala. However, it did not accept that his past experience or his fear of future harm was essentially and significantly related to one or more of the Convention reasons. The Tribunal found that the appellant was detained by the police to facilitate the capture of his brother and to access the tapes that implicated them in drug trafficking and prostitution. The Tribunal found that there was nothing in the appellant’s evidence to indicate that his brother’s activities or the police’s actions were politically motivated. The Tribunal found that the appellant’s brother was wanted for his criminal actions and no Convention nexus had been established.
The Tribunal then considered whether the appellant’s membership of a particular social group, namely his brother’s family, was the essential and significant reason behind the harm that he suffered and the harm that he feared in the future. The Tribunal found that the appellant’s fear arose from being the relative of a person who was targeted by the police because he was wanted for serious criminal activity and possible extortion. The Tribunal further found that the harm suffered by the appellant’s brother in the past was a direct result of criminal gang rivalry which was motivated by personal or material gain. The Tribunal was satisfied that the appellant would not have been persecuted or have feared persecution had his brother’s fear of persecution never existed. The Tribunal therefore, pursuant to s 91S of the Migration Act 1958 (Cth) (“the Act”), disregarded the appellant’s past experiences of harm and his fear of future persecution as they all flowed from the his brother’s non-Convention related fears. The Tribunal found that the appellant did not have a well-founded fear of persecution for the reason of his brother’s activities or his membership of his family as a particular social group.
The Tribunal was satisfied that the appellant’s fear of persecution in India for a Convention reason was not well-founded.
APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT
On 16 April 2009 the appellant filed an application for judicial review of the Tribunal’s decision. The grounds of the application were: jurisdictional error, breach of procedural fairness; and, breach of natural justice.
The Federal Magistrate found that the appellant’s claims were bare assertions without particulars and could not succeed. His Honour noted that the appellant claimed in oral submissions that he was denied procedural fairness by the Tribunal as it required him to proceed with the hearing, notwithstanding the fact that he was in pain from having sustained a back injury. His Honour noted that the Tribunal officer had advised the appellant of the ways that the Tribunal could assist him in being comfortable during the hearing, including the Tribunal asking the appellant what the most comfortable position for him was. The appellant advised the Tribunal that he was most comfortable standing up and that he was able to give evidence in this manner. The Tribunal then advised the appellant to make it known if he felt pain or discomfort at any point during the hearing and offered him regular breaks if he felt the need to take them. His Honour noted that the appellant stated in oral submissions that whilst he was offered a rest during the hearing, he told the Tribunal that he preferred to continue. His Honour found that there was no evidence to show that the Tribunal acted unfairly or unreasonably in this regard.
His Honour was satisfied that the Tribunal complied with s 425 of the Act; having invited the appellant to a hearing and having discussed with him the issues arising from his evidence. His Honour noted that the issues discussed with the appellant were those referred to by the delegate and was satisfied that there was no issue raised at the hearing which would have taken the appellant by surprise. His Honour was also satisfied that the Tribunal made its decision in compliance with s 424A of the Act.
Finally, his Honour held that the Tribunal did not fall into error when it considered the operation of s 91S of the Act. His Honour observed that the appellant’s brother did not have a fear of persecution for a Convention reason and that the Tribunal correctly reasoned and correctly applied s 91S by finding that the appellant could not claim a fear of persecution by reason of being a member of that social group.
His Honour was satisfied that the Tribunal did not fall into jurisdictional error in the decision and dismissed the application.
APPEAL TO THIS COURT
By Notice of Appeal filed on 31 July 2009, the appellant raised the following grounds of appeal against the decision of Scarlett FM:
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.The Tribunal was unsatisfied 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.
At the hearing of the appeal before me the appellant submitted that he had had a bad migration agent who had been of no assistance. He also submitted that he had problems with his brother and that he could not return to India.
CONSIDERATION
The grounds of appeal raised by the appellant are vague and unparticularised. In any event however the appellant invites the Court to revisit the factual findings of the Tribunal and undertake a merits review of his case. Such an approach is outside the jurisdiction of the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
The Tribunal found that the appellant did not fear persecution for a Convention reason. No material has been put before the Court to suggest that this decision was in any manner affected by jurisdictional error.
The appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 4 November 2009
Solicitor for the Appellant: The Appellant appeared in person Solicitor for the First and Second Respondents: Ms B Rayment of Sparke Helmore
Date of Hearing: 4 November 2009 Date of Judgment: 4 November 2009
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