SZNMZ v Minister for Immigration and Citizenship

[2009] FCA 1263

FEDERAL COURT OF AUSTRALIA

SZNMZ v Minister for Immigration and Citizenship [2009] FCA 1263

SZNMZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 802 of 2009

COLLIER J
5 NOVEMBER 2009
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 802 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNMZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	5 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.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 802 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNMZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	5 NOVEMBER 2009
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Nicholls FM delivered on 15 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 26 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

2. The appellant is a citizen of India who arrived in Australia on 26 August 2008. On 9 October 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 8 January 2009. On 5 February 2009 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to have a well-founded fear of persecution from a local leader of the Rashtreeya Swayamsevak Sangam (RSS) and his associates due to his inability to pay outstanding debts. He claimed that he was the owner of a business in which he sold and serviced motor bikes. He stated that he borrowed heavily from the Bank and then from the RSS leader, who he knew personally. He claimed that the RSS leader threatened to kill him when he failed to pay the debt. He claimed that he was attacked by members of the RSS and required major surgery to recover. He also claimed that he was hit by a car driven by members of the RSS in 2004 resulting in his hospitalisation for two weeks. He claimed that the police accepted the matter was an accident. He claimed that he went to Bangalore in December 2005, returning to Kerala in 2007 when his mother became ill. He claimed that his house was attacked and that he made a complaint to the police, but they did not take any action. He stated that he could not return to India because his creditors were chasing him.

   PROCEEDINGS BEFORE THE TRIBUNAL

4. The Tribunal accepted that the appellant was a businessman from Kerala, that he had entered into a financial relationship with the local leader of the RSS and that he owed him money, that his creditors were pursuing him, and that he feared returning to India because he owed money that he was unable to pay. However, the Tribunal was not satisfied that the harm suffered by the appellant in India was motivated by one or more of the Convention grounds. The Tribunal accepted that the appellant was in an accident as claimed, but found that the authorities in India had not refused or failed to take steps to protect the appellant from violence. The Tribunal did not accept as plausible that the RSS had such a great influence in Kerala that the local police force did not provide protection to citizens who were harmed by the RSS. Further, the Tribunal was not satisfied that the appellant had a subjective fear of persecution as he remained living in Kerala for about 12 months after the accident. The Tribunal was satisfied that the appellant fled India fearing harm because he owed money that he was unable to pay. The Tribunal was not satisfied that the appellant fled India fearing Convention related harm.

   APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT

5. On 23 April 2009 the appellant filed an application for judicial review of the Tribunal’s decision. In his application the appellant contended that:

   1.The Tribunal failed to take into account certain relevant considerations and integers central to his claims.

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

   3.He satisfied the Convention definition of Refugee.

   4.The Tribunal failed to consider an integer of his claim, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus and not able to access effective protection.

6. The Federal Magistrate considered the first two grounds together, finding that the Tribunal did consider the appellant’s claim to fear harm from the leader of the RSS and that it had given him an opportunity to elaborate on this claim at the hearing. His Honour was satisfied that the Tribunal made clear findings and gave cogent reasons for those findings. His Honour was further satisfied that the Tribunal’s findings of fact were open to it on the evidence before it. His Honour also found that the appellant was given the opportunity to set out his claims and evidence as well as being asked to elaborate on certain points at the hearing. His Honour was satisfied that the Tribunal sufficiently indicated to the appellant the central issue arising in relation to the review, being a lack of a Convention reason for the claimed harm, as well as putting to him the aspects of his evidence which it did not believe. His Honour was further satisfied that there was no obligation under s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) on the Tribunal as the information relied on, being independent country information and information provided by the appellant, was excluded from the obligation by s 424A(3)(a) and s 424A(3)(b) of the Act respectively.

7. His Honour dismissed the appellant’s third ground as a request for an impermissible merits review, holding that the Tribunal correctly set out the relevant principles in its decision record. His Honour was satisfied that the Tribunal understood the appellant’s claims and that its findings in this regard were open to it.

8. In relation to the appellant’s fourth ground, his Honour held that the Tribunal was not obliged to consider a case not put before it or not arising from the circumstances presented. His Honour found that there was no evidence before the Court that the appellant had ever made a claim to be a “liberal” Muslim and that he feared harm as such as distinct from a Muslim. His Honour noted that despite the fact that the Tribunal gave the appellant a specific opportunity and general opportunity to advance the claim that as a Muslim (or “liberal” Muslim) he feared harm from Hindus, he made no such claim. His Honour concluded that the Tribunal did deal with the claims as made by the appellant or arising from the circumstances that he presented.

9. Finally, his Honour dealt with a complaint raised in the appellant’s affidavit which stated that the Tribunal failed to investigate his genuine claims and because of this failure to investigate the Tribunal was biased. His Honour noted that there was no obligation on the Tribunal to investigate further and that it was for the appellant to make out his case. His Honour found no evidence of bias.

10. Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

    APPEAL TO THIS COURT

11. By Notice of Appeal filed on 5 August 2009, the appellant raised the following grounds of appeal against the decision of Nicholls FM:

    1.The single Judge of the Federal Magistrate Court in his Honour’s judgement delivered on the 15 July 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth).

    2.The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claims.

12. At the hearing of the appeal before me the appellant submitted that the Tribunal did not accept what he said and did not investigate the matter properly.

13. In my opinion the grounds of appeal upon which the appellant relies are meaningless. There is no material before the Court to suggest either jurisdictional error in the decision of the Tribunal or appealable error in the decision of the Federal Magistrate.

14. The appeal is dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        5 November 2009

Solicitor for the Appellant:	The Appellant appeared in person
Solicitor for the First and Second Respondents:	Ms N Johnson of Sparke Helmore

Date of Hearing:	5 November 2009
Date of Judgment:	5 November 2009