SZOBH v Minister for Immigration and Citizenship

Case [2010] FCA 776

FEDERAL COURT OF AUSTRALIA

SZOBH v Minister for Immigration and Citizenship [2010] FCA 776

Citation: SZOBH v Minister for Immigration and Citizenship [2010] FCA 776
Appeal from: SZOBH v Minister for Immigration & Anor [2010] FMCA 203
Parties: SZOBH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number: NSD 386 of 2010
Judge: REEVES J
Date of judgment: 23 July 2010
Legislation: Migration Act 1958 (Cth) ss 36(2), 36(2)(a), 65, 424A(1), 424A(2A), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 424AA
Cases cited:

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210
Date of hearing: 25 May 2010
Place: Brisbane (Heard in Sydney)
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 25
Counsel for the Appellant: The Appellant appeared in person
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 386 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZOBH
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

23 JULY 2010

WHERE MADE:

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The notice of appeal filed on 13 April 2010 be dismissed.

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

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 386 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZOBH
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

REEVES J

DATE:

23 JULY 2010

PLACE:

BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

  1. This is an appeal against a judgment of a Federal Magistrate delivered on 25 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

    BACKGROUND AND PROCEDURAL HISTORY

  2. The appellant is a citizen of India who arrived in Australia on 9 April 2009.  On 14 April 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”).  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

    CLAIMS OF POLITICAL AND RELIGIOUS PERSECUTION

  3. The appellant claimed to fear persecution in India by reason of being a Muslim who was a member of the Indian Union Muslim League (“IUML”).  He claimed that he had been a local leader of the IUML and had become…

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AGLC
SZOBH v Minister for Immigration and Citizenship [2010] FCA 776
Case
[2010] FCA 776
Decision Date

CaseChat Overview and Summary

The case of SZOBH v Minister for Immigration and Citizenship involved the appellant, a citizen of India, who sought to challenge the decision of the Refugee Review Tribunal that had affirmed a refusal to grant him a protection visa. The appellant argued that he faced persecution in India due to his membership in the Indian Union Muslim League and his opposition to the Rashtriya Swayamsevak Sangh and Bharatiya Janata Party. The Federal Magistrate dismissed the appellant's application for judicial review, finding that the Tribunal had not made any jurisdictional error in its decision. The Full Court was tasked with reviewing the Federal Magistrate's decision to determine if there were any errors in law or fact that warranted setting aside the decision of the Tribunal.

The key legal issues before the court were whether the Federal Magistrate erred in dismissing the appellant's application for judicial review, and whether there were any jurisdictional errors made by the Tribunal in its decision. Specifically, the court had to consider if the Tribunal properly assessed the appellant's claims of political and religious persecution and if it correctly applied the relevant legal standards.

The court found that the appellant's grounds of appeal were either unparticularised, did not allege any error by the Federal Magistrate, or were not supported by the evidence. The court held that the Tribunal did not err in finding the appellant's evidence to be inconsistent and not credible. The appellant's claims were not supported by independent country information, and the documents submitted after the hearing did not sufficiently corroborate his claims. The court concluded that the Tribunal correctly applied the "real chance" test under the Migration Act and did not make any jurisdictional error in its decision. Therefore, the appeal against the Federal Magistrate's decision was dismissed.

ORDERS:
1. The notice of appeal filed on 13 April 2010 be dismissed.

Orders

Orders of the court

1. The notice of appeal filed on 13 April 2010 be dismissed.

Note:

Background

Background to the litigation

This is an appeal against a judgment of a Federal Magistrate delivered on 25 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).BACKGROUND AND PROCEDURAL HISTORY The appellant is a citizen of India who arrived in Australia on 9 April 2009. On 14 April 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application. The appellant then applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate’s decision. The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.CLAIMS OF POLITICAL AND RELIGIOUS PERSECUTION The appellant claimed to fear persecution in India by reason of being a Muslim who was a member of the Indian Union Muslim League (“IUML”). He claimed that he had been a local leader of the IUML and had become the Area Secretary in 1998. He claimed that he faced opposition from the Rashtriya Swayamsevak Sangh (“RSS”) and Bharatiya Janata Party (“BJP”). In particular, he claimed: that false cases were filed against him; that he was attacked and beaten on many occasions; and hospitalised as a result; that the leaders of the RSS had threatened to kill him; and that his business was ransacked. The appellant claimed that he approached the police, but as they were influenced by the RSS, they refused to help. Instead, they held him in custody for 24 hours and threatened to fabricate a false case against him accusing him as a local terrorist. He claimed he was therefore forced to leave the country and fears that the RSS will kill him if he returns. The appellant further claimed that during the state legislative elections held in 2006 he campaigned for the IUML leader and, because of that leader’s success in the elections, was again targeted by the RSS. The appellant claimed that when he approached the local police, they responded as they had done previously, with threats and revenge attacks.THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS The Tribunal found that there were good reasons to doubt that the appellant was telling the truth about his involvement in the IUML and the problems he claimed to have had in Kerala as a result of this involvement. In particular, the Tribunal found the appellant to be an unsatisfactory witness, who gave vague and inconsistent evidence over the course of his application. The Tribunal did not accept that these inconsistencies were due to problems that the appellant claimed to have with his memory. The Tribunal also found that the appellant’s failure to answer truthfully at the hearing as to whether he had travelled out of India before coming to Australia undermined his credibility. Similarly, his credibility was undermined by his inability to name a particular opposition candidate when he had given evidence that he had been in charge of his party’s campaign during the 2006 election. The Tribunal found that his claims did not accord with independent country information as to the political situation in Kerala, and elsewhere.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant further claimed that during the state legislative elections held in 2006 he campaigned for the IUML leader and, because of that leader’s success in the elections, was again targeted by the RSS. The appellant claimed that when he approached the local police, they responded as they had done previously, with threats and revenge attacks.THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS The Tribunal found that there were good reasons to doubt that the appellant was telling the truth about his involvement in the IUML and the problems he claimed to have had in Kerala as a result of this involvement. In particular, the Tribunal found the appellant to be an unsatisfactory witness, who gave vague and inconsistent evidence over the course of his application. The Tribunal did not accept that these inconsistencies were due to problems that the appellant claimed to have with his memory. The Tribunal also found that the appellant’s failure to answer truthfully at the hearing as to whether he had travelled out of India before coming to Australia undermined his credibility. Similarly, his credibility was undermined by his inability to name a particular opposition candidate when he had given evidence that he had been in charge of his party’s campaign during the 2006 election. The Tribunal found that his claims did not accord with independent country information as to the political situation in Kerala, and elsewhere. Given the above, the Tribunal did not consider that the documents the appellant produced after the hearing, which partially corroborated his claims, outweighed the problems that it had with his evidence. The Tribunal accepted that the appellant had suffered the injuries indicated in a medical certificate submitted by him, but it did not accept his evidence that this resulted from his claimed involvement with the IUML. The Tribunal was therefore satisfied that there was not a real chance that the appellant would be persecuted by reasons of his real or actual imputed political opinion (in support of the IUML) if he were to return to Kerala now, or in the reasonably foreseeable future. The Tribunal also found that, although the appellant did not specifically claim to face persecution by reason of his religion, he did not face a real chance of harm by reason of his religion if he returned to Kerala in the reasonably foreseeable future. Accordingly, the Tribunal found that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa, and affirmed the decision of the delegate.THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR The appellant filed an application for judicial review in the Federal Magistrates Court on 11 December 2009. In an amended application filed on 18 February 2010, the appellant raised the following grounds:1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.2.The Tribunal failed to consider an integer of Applicant’s claims, in failing to consider whether or not a liberal Muslim I India was at risk of harm from radical Hindus, and not able to access effective protection.3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.Therefore, I submit that the Tribunal failed to analyse properly the ‘future harm’ that I may face if I have to go back to India.Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims.

Ratio Decidendi

Legal Principle Established

The appellant did not make oral submissions and no written submissions were filed. Instead, he said he relied on his notice of appeal. Ms Johnson relied upon the outline of written submissions that had been filed on behalf of the Minister.CONSIDERATION Turning to the appellant’s first ground of appeal, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors. The appellant’s first ground of appeal must therefore be rejected. The second and third grounds of appeal do not allege any error on the part of the Federal Magistrate. The Full Court has emphasised that: “an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons”: see Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10]. Both of these grounds of appeal can therefore be rejected on this basis alone. However, even if these two grounds of appeal were to be taken to allege that the Federal Magistrate had erred in not detecting these alleged errors in the Tribunal’s decision, I do not consider either has any merits. The second ground of appeal alleges that the Tribunal failed to consider an “integer” of the appellant’s claim. This ground is similar to the second ground of appeal raised before the Federal Magistrate (see [11] above), with the addition of the words “whilst the Tribunal formed the view that the applicants were credible witness” (sic). I agree with the Federal Magistrate’s conclusion in respect of this similar ground before him that no such claim was raised, either expressly or implicitly, before the Tribunal and the Tribunal was not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before it: see [14] above. In that event, neither his Honour nor the Tribunal committed any error and this ground of appeal must therefore be rejected. As to the third ground of appeal, it is almost identical to the first ground of review raised before the Federal Magistrate. I also agree entirely with his Honour’s reasons for rejecting that ground of review before him: see [12] above. That being so, I do not consider either his Honour or the Tribunal committed any error and this third ground of appeal must therefore be rejected. CONCLUSION For these reasons, this appeal must be dismissed. I so order. I will hear the parties on the question of costs.