SZOAM v Minister for Immigration and Citizenship

[2010] FCA 864

FEDERAL COURT OF AUSTRALIA

SZOAM v Minister for Immigration and Citizenship [2010] FCA 864

Citation:		SZOAM v Minister for Immigration and Citizenship [2010] FCA 864
Appeal from:		SZOAM & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 327
Parties:		SZOAM, SZOAN, SZOAO, SZOAP and SZOAQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 605 of 2010
Judge:		COLLIER J
Date of judgment:		12 August 2010
Legislation:		Migration Act 1958 (Cth) Div 4 Pt 7, ss 424, 425, 426A
Cases cited:		Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 cited
Date of hearing:	12 August 2010
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	32
Counsel for the Appellants:	The appellant appeared in person with the assistance of an interpreter
Counsel for the First and Second Respondents:	Ms A Mitchelmore
Solicitor for the First and Second Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 605 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOAM
First Appellant

SZOAN
Second Appellant

SZOAO
Third Appellant

SZOAP
Fourth Appellant

SZOAQ
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	12 AUGUST 2010
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The costs of the first respondent be paid by the first and second appellants.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 605 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOAM
First Appellant

SZOAN
Second Appellant

SZOAO
Third Appellant

SZOAP
Fourth Appellant

SZOAQ
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	12 AUGUST 2010
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Nicholls FM delivered on 13 May 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 23 October 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 appellants.

   BACKGROUND

2. The first appellant, his wife (the second appellant), and their three children (the third, fourth and fifth appellants), are citizens of India who arrived in Australia on 20 August 2008. On 30 September 2008 the first appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. The appellant wife and children relied on the claims of the first appellant as part of the family unit. A delegate of the first respondent refused the application for a protection visa on 24 December 2008. On 20 January 2009 the appellants applied to the Tribunal for a review of that decision.

3. The first appellant claimed that in February 2008 he wrote an article about the Gujarat Communal riots to inform people that the killing of Muslims was not a spontaneous act of violence, bur rather a planned act of genocide. Following the publication of this article, he started to receive threats from Hindu extremists in the Rashtriya Swayamsevak Sangh (RSS) and its alliance. He claimed that a group of men threatened to set fire to his house, and he was told to leave the country within 24 hours. The appellant claimed that police were unable to protect him because of their vested political interests, and that he was unable to relocate within India as the RSS were everywhere.

4. At the Tribunal hearing, the appellant also claimed his wife’s car accident in 1995 occurred because there was a deliberate attempt to target him; he had experienced problems with Hindu extremists in 2004 and 2005; he had problems with his brother-in-law in 2004; in January 2007 people made threats against him when he was in his car; and in July 2009 the appellant’s parents were questioned as to his whereabouts by people who broke into their home.

   REFUGEE REVIEW TRIBUNAL

5. The Tribunal accepted that the first appellant had published material in local publications which had inflamed certain Hindu extremists in the area of his home town in Kerala. However, the Tribunal also formed the view that his difficulties with Hindu extremists were confined to a particular place and arose as a direct result of the publication of the February 2008 article. The Tribunal found that the appellant and his family left the area and relocated to Karnatake in March 2008 and remained there untroubled for five months. Further, while the Tribunal found that the first appellant was generally a credible witness, it found that he exaggerated aspects of his claims and sought to “play up” his experiences. The Tribunal therefore found that the appellants could avoid further harm from the group of known Hindu extremists by relocating elsewhere within the country as they did when they moved to Karnatake. Further, the Tribunal was satisfied that the first appellant possesses the resources, knowledge and skills to relocate, and that the state of India provides adequate protection for its citizens.

6. In relation to the other claims raised by the appellant, the Tribunal found that: there was no credible witness that the second appellant’s accident was something which was planned and premeditated; the first appellant’s problems with his brother-in-law were essentially a disagreement over property and assets and did not have a Convention nexus; the appellant’s travel to Australia in 2005 indicated that he did not fear for his safety at this time; and the appellant’s evidence indicated that he did not have a subjective fear of persecution before February 2008.

7. The Tribunal was thus not satisfied that the appellants were persons to whom Australia has protection obligations under the Convention, and affirmed the decision of the delegate.

   FEDERAL MAGISTRATES COURT

8. On 18 November 2009 the appellants filed an application for judicial review of the Tribunal’s decision. In that application, the appellants raised 6 grounds of review, which can be summarised as follows:

   1.The Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”).

   2.The Tribunal failed to properly consider whether the appellants would suffer serious harm if they were to relocate within India.

   3.The Tribunal failed to consider an integer of the first appellant’s claims, in failing to consider whether a liberal Muslim in India was at risk of harm from radical Hindus.

   4.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Act.

   5.The Tribunal committed jurisdictional error because the appellants satisfy the four key elements of the Convention definition.

   6.The Tribunal failed to investigate the appellant’s claim which indicated bias in its decision.

9. The Federal Magistrate stated in respect of ground 1 that to the extent that the first appellant was complaining that the Tribunal should have given him the opportunity to comment on its view of his evidence, these views were not “information” for the purposes of s 424A(1) of the Act. Further, the “information” that the Tribunal considered would be the reason for affirming the delegate’s decision was information which fell within the exceptions contained in s 424A(3) of the Act, or was put to the appellant at hearing pursuant to s 424AA of the Act.

10. In respect of ground 2, the Federal Magistrate found that the Tribunal properly considered whether protection would be afforded to the appellants in another part of India, and whether it was reasonable for the appellants to so relocate (per Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51).

11. In respect of ground 3, the Federal Magistrate found that a plain reading of the material before the Tribunal indicated that at no point did the appellant claim to fear persecution because he was a “liberal” Muslim. Even if it could be said the appellant was driven by some “liberal Muslim” views to write the articles, his fear of harm was said to arise from the publishing of the articles, not from any generally held “liberal Muslim” views. It was therefore clear that the Tribunal addressed the appellant’s claims as presented.

12. In respect of ground 4, the Federal Magistrate found that there was no failure by the Tribunal to comply with the relevant requirements of Div 4 of Pt 7 of the Act.

13. In respect of ground 5, the Federal Magistrate found that there was nothing in the material before the Court to suggest that the Tribunal misunderstood or misapplied the relevant test applicable to this case. Further, the Tribunal’s decision that his fear was not well founded was open to it for the reasons that it gave.

14. In respect of ground 6, the Federal Magistrate found that the material before the Court revealed that the Tribunal gave careful consideration to what the first appellant put before it. At its highest, the alleged failure to investigate the first appellant’s claim to fear persecution in India could only be seen as a disagreement with the Tribunal’s conclusion. Such a complaint was not enough to establish bias in the Tribunal’s decision.

15. The Federal Magistrate also addressed a complaint raised by the first appellant in his oral submissions, namely, that the appellant wife wanted to give her evidence to the Tribunal in person, and was not able to do so because of her injury. His Honour therefore considered whether the Tribunal discharged its obligation pursuant to s 425 of the Act in relation to the appellant wife, such as to enable it to proceed to a decision without giving her a further opportunity to appear and give her “evidence”.

16. His Honour found that the Tribunal discharged its obligations to the appellant wife pursuant to s 425. His Honour noted that:

    ·she had numerous opportunities to attend a hearing, but attended only once (when the hearing was adjourned on the basis of her husband’s evidence);

    ·thereafter, she did not attend on each subsequent occasion offered over a period of three months;

    ·at no point in any of the numerous communications did the appellants communicate the length of the wife’s incapacity, or inability, to attend;

    ·the only medical certificate provided was that dated 2 April 2009 which did not indicate any severe disability;

    ·no other medical certificates were provided to support the claim of severe disability, and therefore inability to attend a hearing; and

    ·the Tribunal continued to offer her the opportunity to submit any “information” or “evidence” she wished to the Tribunal in writing.

17. In the circumstances, his Honour concluded that the Tribunal was entitled to proceed in the way that it did pursuant to s 426A of the Act, and that no breach of s 425 of the Act had been established.

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

    APPEAL TO THIS COURT

19. By Notice of Appeal filed on 31 May 2010, the appellants raised the following grounds of appeal against the decision of Nicholls FM:

    1.His honors judgment delivered on the 13 May 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

    2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

    3.The Hon. FM failed to take consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

    [Errors in original]

    SUBMISSIONS OF THE PARTIES

20. At the hearing of the appeal before me the appellants were unrepresented. They filed no written submissions, however the first appellant made oral submissions on behalf of all appellants.

21. The Minister was represented by Counsel. Written submissions were filed on behalf of the Minister prior to the hearing.

    FINDINGS

22. The three grounds of appeal raised by the appellants are broad, vague and unparticularised. With respect, they are also somewhat formulaic in cases of this nature.

23. In substance, the appellants claim that the Federal Magistrate did not properly review the decision of the Tribunal, and recognise the alleged injustice inherent in the Tribunal’s decision. However the decision of the Federal Magistrate was careful and detailed, and closely examined the grounds of review before the Court. It is also clear that the Tribunal approached the case of the appellants carefully, and afforded ample opportunities to the appellants to put their case.

24. At the hearing today the first appellant submitted that the appellants had not been accorded justice by the Tribunal, in particular that the second appellant (the appellant wife) had not been given an opportunity to put her case to the Tribunal face to face. However as the Federal Magistrate explained, in detail, in paras 69-92 of his Honour’s Reasons for Judgment, the Tribunal had scheduled six dates on which it proposed to receive evidence from the appellant wife. On the first date 8 April 2009 when all appellants appeared before the Tribunal, the hearing was not completed and the appellant wife did not give evidence to the Tribunal. However at every subsequent occasion the hearing was either rescheduled because the appellant husband or wife was unable to appear, or the hearing proceeded in the absence of the appellant wife. The reason the appellant wife was unable to appear was related to her medical condition.

25. I note that the Tribunal wrote to the appellants on 24 June 2009 stating that, in light of the regular cancellation of proposed hearings, the Tribunal would require the appellant wife to give evidence by way of written statement or alternatively by telephone at the hearing of 2 July 2009. It appears, however, that the appellant wife neither appeared at the hearing of 2 July 2009, nor gave evidence in the alternative ways required by the Tribunal.

26. At para [104] of the Reasons for Judgment his Honour said:

    The Tribunal discharged its obligations to the applicant wife pursuant to s.425. She had numerous opportunities to attend a hearing. She attended only once, but her husband’s evidence was such that the Tribunal could not complete the hearing on that occasion.

27. Further, at para [112] his Honour said:

    What remains is that the Tribunal gave the applicant wife every opportunity to appear. No evidence was provided in relation to, nor did the applicants really say, how long she was to remain incapacitated. In the circumstances, the Tribunal was entitled to then proceed in the way that it did. Noting, of course, that the Tribunal continued to offer the opportunity for the applicant wife to submit “information”.

28. Section 425 of the Act provides:

    (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)  Subsection (1) does not apply if:

    (a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

    (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)  subsection 424C(1) or (2) applies to the applicant.

    (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

29. The first appellant in Court today said that his wife wanted to give evidence to the Tribunal face to face, and was unable to give evidence over the telephone. The first appellant was unable to explain why the appellant wife was unable to give evidence by telephone. In my view in this case the Tribunal has satisfactorily discharged its duty under s 425. No injustice to the appellant wife has arisen in these circumstances.

30. Further, at the hearing today the first appellant submitted that the Tribunal had failed to properly inquire into the circumstances of the appellants’ case in India. I agree with Ms Mitchelmore that this submission misconceives the nature of the Tribunal’s function. As observed by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22, the Tribunal does not have an inquisitorial role and is not required, as claimed by the first appellant, to investigate the appellants’ claims through independent sources.

31. I am unable to identify any errors in the judgment of the Federal Magistrate. I am unable to identify any reasons justifying an order that the decision of the Tribunal be quashed.

32. In my view the appeal should be dismissed with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       12 August 2010