SZOCN v Minister for Immigration and Citizenship

[2010] FCA 844

FEDERAL COURT OF AUSTRALIA

SZOCN v Minister for Immigration and Citizenship [2010] FCA 844

Citation:		SZOCN v Minister for Immigration and Citizenship [2010] FCA 844
Appeal from:		SZOCN & Anor v Minister for Immigration & Anor [2010] FMCA 311
Parties:		SZOCN and SZOCO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 536 of 2010
Judge:		NORTH J
Date of judgment:		3 August 2010
Date of hearing:	3 August 2010
Date of last submissions:	3 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	Appellant appeared in person
Counsel for the First Respondent:	Mr Y. Shariff
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 536 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCN
First Appellant

SZOCO
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	3 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed;

2.The appellants pay the first respondent’s costs fixed at $2102.

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 536 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCN
First Appellant

SZOCO
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	3 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 3 May 2010.   On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal, dated 23 December 2009, affirming the decision of a delegate of the first respondent not to grant the appellants a protection visa. 

2. The appellants are husband and wife. They arrived in Australia on 30 May 2009. The claims made to the Tribunal were made in relation to the husband.  He will be referred to as the appellant.  The fate of the appeal for the wife depends upon success of the husband’s claim.

   THE APPELLANTS’ CLAIMS

3. The appellant claims to fear persecution in India based on his political activities.   The appellant was born in New Delhi in 1984, and worked for his father’s car company in New Delhi for a number of years. In 2004 he completed a motor mechanic’s apprenticeship.  He claimed that he joined the Congress party in 2005 and actively participated in the activities of the party.  He claimed that he organised meetings, promoted the party and went door to door seeking votes for Congress party candidates in New Delhi, particularly his local candidate, Ms Krishna Thirahl.  He said that he was targeted, as a result of this activity, by Mr Manoj Shokeen, an influential person from the opposition Bharatiya Janata Party (BJP). 

4. The appellant said that he was threatened in order to encourage him to leave the Congress party, and that he and his family were threatened, intimidated and assaulted.  He claimed that on 14 April 2009, he organised a meeting in Karala, and as a result was threatened by the BJP leader Mr Shokeen, was severely beaten and injured, suffering head injuries, wrist and leg injuries, unconsciousness, and was admitted to hospital for three days.  Then, he says, on 22 April 2009, BJP activists attacked his home and assaulted his family members.

5. The election was held on 7 May 2009 and the BJP was defeated in the locality in which the appellant lived.  He claimed that on 13 May 2009, he was assaulted and that his business and car were targeted. 

   THE DECISION OF THE TRIBUNAL

6. The Tribunal questioned the appellant about his membership of the Congress party and found that he was unable to articulate the aims and objectives of the party, or the political platforms of the Congress and the BJP parties.  The Tribunal found that his answers were repetitive, vague and generalised, and generally claimed that the Congress party provided better infrastructure, such as roads, water, and electricity.   The appellant was unable to provide any detail about the political aims and objectives of the party.  The Tribunal found, at [92], that the appellant has:

   …no attributes that would make him stand out from any other Congress party members in India, and that would make him the target of opposition groups.

7. The Tribunal noted that between February 2009, prior to the election, and May 2009, when he left India, the appellant married and made arrangements to obtain a visitor visa for both he and his wife in Australia.  At the same time he worked in his father’s business, buying and selling cars, and working as head mechanic.  During this period, the Tribunal noted that the appellant claimed that he was actively involved in promoting the Congress party, and was the subject of assault on a number of occasions. 

8. The Tribunal was not prepared to accept that the assault had happened for two reasons.   First, it observed that there was no medical evidence provided to corroborate the admission to hospital, and second, it noted that the appellant flew from India to Australia within 16 days of the alleged assault.  The Tribunal concluded that the injuries reported were not consistent with international travel so soon thereafter. 

9. The Tribunal also heard evidence from the appellant’s wife.  It accepted that her education was limited, but expected that she would have at least known the name of the party with whom the appellant was affiliated.  She was, however, unable to name the party, nor to describe in detail the activities in which he was engaged. 

10. The Tribunal concluded that the appellant had not been involved in door to door promotion of the Congress party, because it reasoned that a person involved in that activity would have a knowledge of the party’s aims, objectives and political platform to a greater degree than that of the appellant.  The Tribunal concluded, on the basis of the evidence before it, that the association of the appellant with the Congress party was based on a commercial business relationship, and not as a political supporter, and did not give rise to any well-founded fear of persecution.

    THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT

11. The appellants appealed to the Federal Magistrates Court, and relied on three grounds.  The appellants’ first ground of appeal was as follows:

    The Tribunal erred in law, amounting to jurisdictional error, to find that I shall not be persecuted for a Convention-based reason if returned back to India for my political belief as a member of congress.  The Tribunal found failed to consider that I was a political activist.  The considered that I established relationship with congress on business purpose and ignored the harassment suffered in India for my political belief and made errors of jurisdiction.

12. The federal magistrate rejected this ground of appeal.  He regarded the ground as simply contesting the factual conclusion reached by the Tribunal adverse to the appellant. This, the federal magistrate concluded, did not amount to jurisdictional error. 

13. The second ground of appeal was stated as follows:

    The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to consider me and my wife as credible witness [sic] and refused our application.  It is fact that my wife may have lack of knowledge of politics as she was never directly involved in any political activity.

14. The federal magistrate regarded this ground of appeal as misconceived.  He said that the Tribunal had relied on the wife’s knowledge of her husband’s political activity as counting against their claim.  The ground, however, directs attention not to her knowledge of her husband’s activity, but rather her own knowledge of politics. 

15. The third ground of appeal was expressed as follows:

    The Tribunal failed to put the adverse information to me to enable me to have an opportunity to submit my explanations and materials in reply to the alleged adverse materials and it could have led to a different decision by the Tribunal, therefore there is jurisdictional error.

16. The federal magistrate regarded this ground of appeal as irrelevant.  He said that the Tribunal decision was based upon a rejection of the evidence of the appellant and did not rely on “adverse materials” which the federal magistrate took as a reference to country information.  It seems that the federal magistrate thought that this ground had been taken from some other case in which country information had been the basis of a decision.  The federal magistrate then addressed some oral submissions made by the appellant, which, in essence, contested the credibility finding made by the Tribunal.

17. The appellant then raised the question of a police report which he wished to tender, but which he apparently did not have at the time.  The appellant asked for an adjournment so that the police report could be provided.  The federal magistrate rejected this application for adjournment on the basis that he was bound to determine the case on the basis of the material submitted to the Tribunal. 

    THE PROCEEDING IN THIS COURT

18. On 17 May 2010 the appellants filed a notice of appeal in this Court.  The grounds of appeal were as follows:

    2.The Federal Magistrate Honourable Raphael erred in law for its failure to consider that the Tribunal failed to find that I (First named appellant) was a victim of persecution as an active member of Congress prior to my departure from India and I shall also be persecuted if returned back to India.  The Tribunal made errors of jurisdiction to ignore our persecutions for the political belief of first named applicant.  There is lacking in the proceeding of the Refugee Review Tribunal as the Tribunal did not give us a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that we shall not be victim of harassments if returned back to India and made errors of jurisdiction.

    3.The Federal Magistrate made error to find that the Tribunal failed to accept us as credible witness and we were discriminated in India.

    4.The Federal Magistrate erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that we do not have genuine fear of persecution for a convention reason and we have no well-founded fear of persecution within the meaning of the convention and we do not meet the criteria set out in s.36(2) of the Act of Protection visa;

    5.The Federal Magistrate erred in not finding that the Tribunal failed to put the adverse information to us to enable us to have an opportunity to submit our explanations and materials in reply to the alleged adverse materials and it could have led to a different decision by the Tribunal if further information is provided in a submission, therefore there is a jurisdictional error.

    6.The Federal Magistrate erred in law not finding that the Tribunal has not taken into consideration that I (first named applicant) organized a meeting in Karala and I received threats and attacked by our political opponents with knife and other sharp weapons.  I suffered injury in my head, wrists and legs.

    7.The Federal Magistrate erred in law to find that the Tribunal did not consider the threat to our lives or liberty and the significant harassment we shall be experiencing on return back to India at the time of decision and we do not come within the Convention definition of a refugee.

19. The appellants did not address those grounds of appeal at the hearing of the appeal.  To some extent the grounds repeat the matters raised before the federal magistrate.  This applies to the second ground, and to some extent the third and fifth grounds.  To the extent that they reflect the grounds before the federal magistrate, in my view the federal magistrate was correct in the manner in which he dealt with each of the grounds argued before him.  The fourth ground is a general complaint that the Tribunal made a jurisdictional error.  Without any further particularisation, this is not a ground of appeal which can be addressed. 

20. The sixth ground is a criticism of a discrete factual finding made by the Tribunal.  It does not appear that this matter was raised before the federal magistrate.  Leave would be required to raise it for the first time on appeal.  There is no reason why such leave should be granted.  The ground is bound to fail because it simply takes issue with the finding of the Tribunal that the appellant was not instrumental in organising a particular meeting or that he was the subject of threats and attack. 

21. Ground seven is again so generally expressed as not to provide a basis for any meaningful ground of appeal. 

22. Both appellants addressed the Court orally on the hearing of the appeal.  The appellant said that he did not have sufficient time to provide documents in support of his claim before the Tribunal.  He said he did not know that he had to submit documents in support of his case and said that the Tribunal should have given him two or three weeks after the hearing to provide further documents.  Upon further questioning on the appeal the appellant accepted that he had not asked the Tribunal for more time.  His case was that the Tribunal should have known that he needed more time and it was a jurisdictional error for it to have proceeded to decision without alerting him to the need to file further documents. 

23. There is no jurisdictional error in the actions of the Tribunal.  It had no duty to run the appellant’s application for him.  Although he was unfamiliar with the process before the Tribunal there was about six months between his application to the Department until the date of decision by the Tribunal in which to gather such evidence as he needed.

24. The appellant also complained that the questioning of his wife was nonsensical.  He said that she was asked about the distance between New Delhi and the Punjab.  His suggestion appeared to be that this was not a matter of any relevance.  Taken in isolation, even if the factual basis is accepted, the asking of such a question does not amount to a jurisdictional error. 

25. The appellant produced two documents on the appeal.  One was a document purporting to be a complaint made by his father to the police relating to an alleged assault on the appellant, and the other was a Congress Party membership card.  I took the appellant to be seeking leave to tender these two documents on appeal.  The first respondent objected to their tender.  Neither of the documents were before the Tribunal and hence cannot be the basis for impugning its decision.  In any event, the documents would, even if accepted, not change the result reached by the Tribunal.  In relation to the Congress Party membership card, the Tribunal acknowledged an association between the appellant and the Congress Party, but rejected that the appellant was an active political supporter or organiser.  The existence of the membership card takes that matter no further.

26. The complaint from the appellant’s father about an assault on him again does not go to a matter which was central to the determination by the Tribunal.  In any event the complaint does not give a date for the events to which it refers. Consequently, it would not be in the interests of justice to admit either of the documents on the appeal and that application is rejected. 

27. The appellant’s wife, herself an appellant, gave evidence explaining why she was unable to answer questions about New Delhi.  She said that this was because she resided in the Punjab.  She also generally said that there was a danger to their lives in India and consequently the application should succeed.  Similarly, the appellant contended that he feared persecution in India and that it was a life and death situation for them.

28. One can readily understand the despair that the rejection of their case has had for the appellants.  Nonetheless, the role of this Court is to determine whether the Tribunal fell into any jurisdictional error, and, for the reasons which I have given, the Tribunal did not and the federal magistrate was correct to so hold. Consequently the appeal must be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        11 August 2010