SZNQR v Minister for Immigration

[2009] FMCA 1035

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1035

MIGRATION – Review of RRT decision – applicant a citizen of China – where applicant claimed Tribunal made illogical findings and failed to put adverse information to him as required by s.424A – whether Tribunal biased.

Migration Act 1958 (Cth), ss.424A

Minister for Immigration v Eshetu [1999] HCA 21
SZBEL v Minister for Immigration [2006] HCA 63

Applicant: SZNQR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1335 of 2009

Judgment of: Raphael FM

Hearing date: 19 October 2009

Date of last submission: 19 October 2009

Delivered at: Sydney

Delivered on: 19 October 2009

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr Y. Shariff

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1335 of 2009

SZNQR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 12 August 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 24 September 2008.  On 22 December 2008 a delegate of the Minister refused to grant a protection visa and on 16 January 2009 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The Tribunal invited the applicant to a hearing which he attended.  On 6 May 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 7 May 2009.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his claimed political involvement as a Muslim with the MIM in Hyderabad. Prior to that involvement the applicant made a claim of fear of persecution arising out of the politically-inspired disappearance of his father in Bihar in 1994. The applicant’s father stood as a parliamentary candidate for elections in the interests of the IPF and the applicant claimed he was abducted by a man by the name of Singh who was described as a criminal for hire associated with the Naxalites. The applicant asserted that the person behind his father’s kidnapping was a D.K. Sharma from the Samta party. The applicant claimed that the father’s disappearance was reported to the police but they did nothing about it.

3. The applicant told how after his father’s disappearance he moved to Hyderabad and started a medical supply business and joined the MIM which is a substantial party acting in the interests of the Muslim population.  The applicant claimed that in 1994 when he was returning home from a meeting of the MIM he was attacked and he was given a warning that he should leave the country.  His concern for the threats made against him caused him to take up an offer to travel to Saudi Arabia where he lived until 2008 when his visa was not renewed.  The applicant says that he returned to Hyderabad in 2008 but no sooner had he arrived than he was accused of being part of a terrorist group.

   “…[w]hen he returned to Hyderabad on his last trip to India they found out that he was there and complained to the police that he was associated with Harakat Ul Jihad which was behind the bombing of a mosque in Hyderabad.  His friend then called and told him that the police were searching for him.  When asked to explain who had made the accusations against him he said that he did not know.  He said he contacted his friend in Hyderabad and went to see him at night time.  However, someone saw him.  He did not know who exactly.  The police raided the place the next day.  It was put to him that it was hard to believe that he was accused of being associated with terrorists during a two-day visit to Hyderabad after an absence of some 10 years.  The Tribunal also noted that it was hard to believe that although he did not know who had made the accusations against him the police had immediately responded to these accusations by raiding his friend’s place.  He said that although he visited Hyderabad for two days he did not know when they accused him of such things...” [66] [CB 98]

4. The applicant had told the Tribunal that pre-1998 after he had moved to Hyderabad he had received threats from Mr Reddy who was working for the local BJP leader.  The applicant told the Tribunal that he had been working for a Mr Owaisi who was a sitting member of parliament and who was a member of the MIM.  The Tribunal questioned the applicant as to why the opponent of Mr Owaisi believed that he could change Mr Owaisi’s chances of retaining his seat in the Lok Dal by threatening the applicant.  The applicant did tell the Tribunal that he thought there was a possibility that he was singled out in Hyderabad because they knew he was from Bihar and he said that there was a possibility that there was a connection between Mr Reddy, who had persecuted him in Hyderabad, and Mr Singh, who had persecuted his father in Bihar.

5. The Tribunal put to the applicant its concerns about his claims and noted that the threats made against him in Bihar were made some 15 years ago because of complaints that he had made to the police about his father’s kidnapping.  The Tribunal questioned the applicant as to why he could not return to Bihar and live with his wife but the applicant argued that the police were still after him.  The Tribunal noted that it found it difficult to accept that if the applicant had been accused of terrorist activities in Hyderabad he would have been able to depart the country from Delhi airport.

6. In its findings and reasons the Tribunal referred to the matters which have been adumbrated above.  It came to the conclusion that it accepted the applicant’s story about what occurred in Bihar to his father but noted:

   “The applicant confirmed at the hearing that the only reason he was threatened by Mr Singh was his complaint against him.  He did not claim to have made any further complaints against his father’s political opponents or those responsible for his abduction in the last 15 years and he did not claim to have been pursued by these people after he went to Andhra Pradesh.  Although he suggested at the hearing that there may have been links between Mr Singh and Mr Reddy who had threatened him in Andhra Pradesh he conceded that the suggestion was mere conjecture and nothing else.  For these reasons the Tribunal is satisfied that there is no real chance that the applicant would suffer harm in Bihar for the reason of his actual or imputed political opinion, religion, membership of a particular social group of his father’s family or any other convention reason.”

7. The Tribunal then turned to the applicant’s claims about his fears of persecution in Andhra Pradesh, or more particularly the City of Hyderabad.  It concluded that his evidence did not show that his contribution to the MIM posed a political threat to the BJP and felt that he had not been able to persuasively explain why he would have been targeted and threatened in the manner he had described.

8. The Tribunal raised the concerns which I have previously referred to before concluding that it could not accept that the applicant was targeted by the BJP or anyone else in Andhra Pradesh for the reasons he has provided. The Tribunal did not accept that he was accused of being associated with Harakat Ul Jihad or any other radical Muslim organisation and it did not accept that he was or is wanted by any authorities in Andhra Pradesh or anywhere else in India for being suspected of involvement in a terrorist organisation. The Tribunal was satisfied that if the applicant were to return to Hyderabad and become involved with the MIM at the same level, or even a higher level, there was no real chance he would be seriously harmed by the BJP or other Hindu extremists. The Tribunal was satisfied that he would not come to any harm in Bihar and, therefore, felt that he was not a person to whom Australia owed protection obligations.

9. On 3 June 2009 the applicant filed an application for review of the Tribunal’s decision with this Court.  On 20 August 2009 he filed an amended application and on 9 October he filed a series of submissions.  The amended application contains a number of paragraphs which individually refer to alleged jurisdictional errors.  The first relates to alleged failure of the Tribunal not to accept that his threat or fear which induced him to leave Bihar came from his political opinion.  It seems to me that the applicant has not understood the Tribunal’s grounds and reasons because my reading of it is that the Tribunal accepted that the applicant left Bihar following the abduction of his father and that the abduction of his father was politically motivated.  I cannot see that there is any jurisdictional error in this.

10. The second paragraph says that the Tribunal made an error because it mentioned that the applicant would not suffer harm in Bihar for reason of his political opinion but it did not show what the reason was that it felt that the applicant would not suffer harm because he is a minority Muslim in India.  At [85] [CB 103] the Tribunal says:

    “The Tribunal has considered the applicant’s more general claims to the department in relation to the situation of Muslims in India. He did not pursue these claims [at the hearing] and there was no information before the Tribunal in the sources consulted to suggest that Muslims in general are not safe in India, they are not free to exercise their normal civil rights or that members of Muslim parties are killed by the police. The Tribunal is not satisfied that the applicant will face a real chance of persecution for the reason of his Muslim faith if he were to return to India.”

    This matter has therefore been dealt with by the Tribunal and the applicant is wrong to claim otherwise.

11. The third paragraph of the application says that the Tribunal made a jurisdictional error by not understanding the nature of the applicant’s claim arising out of the false terrorism charges.  A reading of the Tribunal’s grounds and reasons indicates that it clearly understood this and what the applicant is seeking to do here is to obtain a merits review which this Court cannot provide.

12. The next paragraph of the application says that the Tribunal made a jurisdictional error by taking a different kind of approach to assess his claim and then reject it.

    “First the Tribunal accepted the applicant’s account of his experience in Bihar and then the Tribunal does not accept that the applicant was targeted by the BJP or anyone else in Andhra Pradesh.”

    This seems to be a claim of illogicality on the part of the Tribunal.  It is a difficult claim to make out firstly because as long as ago as the Minister for Immigration v Eshetu [1999] HCA 21 at [40] Gleeson CJ and McHugh J said:

    “The essence of a suggestion of illogicality or unreasonableness in the Tribunal’s decision … is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible … Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable” or even “so unreasonable that no reasonable person could adopt it.”  If these are merely emphatic ways of saying that the reasoning is wrong then they have no particular legal consequences.”

    The second reason why the applicant’s complaint is unjustified is that there is absolutely no reason why a person who has a genuine political problem in one city shouldn’t be free of such problems in another. That is all the Tribunal found.

13. The next paragraph of the applicant’s grounds is a complaint that the Tribunal did not give the applicant adverse information for comment. This is presumably a claim under s.424A of the Migration Act 1958 (Cth) (the “Act”). There are six examples given. They all relate to findings by the Tribunal following the discussions of the applicant, a reading of the PVA and associated documentation and the Tribunal having listened to the interview between the applicant and the delegate. Thus any information that the Tribunal received in this regard was information that was provided by the applicant and is not a matter which had to be referred to him for comment under s.424A. In fact what the applicant was requesting was something that was specifically ruled out by the High Court in SZBEL v Minister for Immigration [2006] HCA 63 where the Court said at [48]:

    “Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

    "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

    Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

14. The applicant’s submissions filed on 2 October 2009 take up some of the same matters with which I have already dealt and otherwise go into some detail about the applicant’s claims and put in an argumentative manner (a comment that is not intended to be pejorative) the applicant’s claims to be a refugee.  I do not think that the written submissions provide any new grounds with which I have not already dealt.

15. Today the applicant also spoke.  I accept the submission made by Mr Shariff on behalf of the second respondent that the gravamen of the applicant’s complaint today really amounted to a claim that the Tribunal was biased against him.  Bias is a serious matter and one which must be clearly identified and proved.  General comments about the Tribunal’s reasoning processes which were what I heard today cannot satisfy those requirements.

16. Having considered the Tribunal’s decision record as a whole I have come to the view that I am unable to find any basis upon which it could be said that it fell into jurisdictional error.  I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  23 October 2009