SZOGE v Minister for Immigration and Citizenship

[2010] FCA 871

FEDERAL COURT OF AUSTRALIA

SZOGE v Minister for Immigration and Citizenship

[2010] FCA 871

Citation:		SZOGE v Minister for Immigration and Citizenship [2010] FCA 871
Appeal from:		SZOGE v Minister for Immigration [2010] FMCA 349
Parties:		SZOGE and SZOGF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 668 of 2010
Judge:		RARES J
Date of judgment:		9 August 2010
Date of hearing:	9 August 2010
Place:	Sydney (via video link to Darwin)
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	24
First and Second Appellants:	Appeared in person
Solicitor for the First Respondent:	R Baird, Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 668 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGE
First Appellant

SZOGF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 AUGUST 2010
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO DARWIN)

THE COURT ORDERS THAT:

1.Appeal be dismissed.

2.The appellants pay the first respondent’s 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 668 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGE
First Appellant

SZOGF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	9 AUGUST 2010
PLACE:	SYDNEY (VIA VIDEO LINK TO DARWIN)

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from the decision of the Federal Magistrates Court to refuse the appellants’ claims for constitutional writ relief:  SZOGE v Minister for Immigration [2010] FMCA 349. The appellants are husband and wife and citizens of the Republic of India. They arrived in Australia as visitors in June 2009 and applied for protection visas on 4 August 2009.

   THE CLAIMS BEFORE THE DELEGATE

2. Their application was based on the husband’s claims that he feared persecution in Gujarat.  He claimed that he had a sugar trading business that he operated from Gujarat.  In his application for a protection visa he claimed that he had become very involved in politics in his student days and that he and his family were Congress Party supporters.  He claimed that he had become very popular in the community and that once he had entered into business and become financially stable he had joined the Congress Party himself.  The husband claimed to have had an influential voice in the party with a lot of supporters and that in a short space of time he became a team leader within it, and was given very responsible positions.  He claimed to have become very famous and because of this, the opposition BJP Party had become envious of the support he had mustered and tried then to discredit him, defame him and destroy his political career.  He claimed that he did not discriminate between religious groups after communal riots had occurred in his community and that because he had helped Muslims, Hindus in the BJP Party became enraged and then attacked and defamed him.  The husband claimed that he had been followed and attacked by people with sticks and iron bars.  He said that he reported the attacks to the police but they could not find the perpetrators and told him that they had been caused by powerful Hindus who could not be controlled. 

3. The husband claimed that it was unsafe for him to continue his activities at his home location and so senior members of his party transferred him to a branch at another location where he held a similar position.  He claimed that he thought he would be safe there from the BJP attackers because they did not know where he was.  He claimed that after a while he had returned to his original home area because municipal elections were imminent and party members felt he had to be there to muster support due to his strong local support base and ability to attract supporters to the party.  He claimed that his strong activities in support of the Congress Party led new supporters to believe in it and this again caused the BJP Party to lose support and to become angry with him.  He claimed that, shortly before the election, he was asked by two people at his home to go and help them with their car and that when he did so, he had been beaten with iron bars and wooden stumps and hurt all over his body.  He claimed that his attackers warned him to stay away from the area and stop campaigning for the Congress Party but that he ignored the warnings, continued campaigning and that his party’s nominee won the election.

4. He claimed that after the election, things became very bad for him and that he received death threats from a few fanatical BJP members.  He claimed that one night he had been knocked unconscious on a quiet road and left with his hands and legs bound and that his body full of bruises from being punched and kicked and beaten, but that he had been found by passers-by and taken to hospital.  He then claimed that after this he had received more threatening calls from local gangs and a Mafia group of fanatical BJP supporters, who were allegedly going to finish him “for good.”  He claimed that there were knocks on his door at midnight, and people tried to break into his home.  He claimed that he finally had to go back to work and that he had been kidnapped one night walking home, put in a van, taken to a quiet spot, where he was beaten up so badly he could not walk for days, and that he was bleeding and saved by a passing motorist.

5. The husband claimed that the BJP would seek political revenge against him and that if he was killed, the police would not investigate his murder.  He claimed that because his and his family’s life was in danger and the fanatical groups had contacts in every Indian state, he was forced to flee with his wife here to seek protection.

   THE DELEGATE’S DECISION

6. A delegate of the Minister interviewed the husband by telephone, in the course of determining his application.  The delegate noted that he had asked the husband many questions concerning his alleged membership of the Congress Party but that, ultimately, the husband had said that he had not held, and was not interested in, any position in the party and only worked there.  He did not have any party membership card and said that he worked during the elections and collected support from people for the party.  In answer to the delegate’s question, he said that the election for the council had been held seven months before the October 2009 interview.  Subsequently, he asserted that he was not sure when the election date was.

7. The delegate found that the husband’s answers, concerning his activities in the party and the area in which he was supposed to have conducted them, were vague.  The delegate did not accept that the husband had been a member of the Congress Party and that he had been attacked or threatened on account of his membership of it.  The delegate noted the husband had travelled into and out of India on several earlier occasions, including to London, Singapore and Malaysia, and that this indicated he had not been afraid to return to India, thus casting doubt on his claim to fear Convention-related persecution there.

8. The delegate found that prior to coming to Australia, the appellants had been in New Zealand for 24 days but that the husband had received information from a person he met in Auckland, whose name he did not know, that protection was not available in that country.  The delegate observed that the husband was a person with considerable life experience and it was reasonable to expect him to confirm with other sources the accuracy of information concerning obtaining protection in New Zealand.    The delegate found that the appellant had travelled to the United Kingdom for 17 days in 2008 and that if he, at that time, genuinely feared persecution because of his political beliefs and activities, he could have lodged an application then for protection in that country.  In addition, the delegate found that country information indicated that the appellants could relocate successfully within India without being forced, in a place of relocation, to suffer persecution there for any Convention-related reason.  The delegate was not satisfied that Australia owed protection obligations to the appellants and rejected their application.

   THE PROCEEDINGS BEFORE THE TRIBUNAL

9. The appellants applied to the tribunal on 16 November 2009 for a review of the delegate’s decision.  On 2 December 2009, the tribunal wrote to the husband informing the appellants that a hearing had been fixed for 6 January 2010.  On that day the husband attended at the tribunal, gave evidence and presented arguments before it.  He told the tribunal that a student whom he had met in Sydney had helped him prepare his original application for a protection visa but he did not know anything about that person.  The husband, again, affirmed that he had assisted in the successful election of a Congress Party candidate in an Ahmedabad city municipal election.  The tribunal told him that municipal elections had last taken place in Ahmedabad in March 2005 and the next were not due until 2010.  The tribunal told him it had relied on newspaper reports that it had obtained from internet searches to substantiate that information.  It informed the husband that this suggested that he had not been telling the truth about his involvement with politics.  He reiterated that he had been telling the truth.  He said that he had first had problems in late 2008 or at the beginning of 2009.  He gave accounts of having been beaten savagely twice before the election and to have suffered a third attack a few days after it.  The tribunal noted that this had been inconsistent with his account given in his application for a protection visa.

10. During the course of its questioning of the husband and the development of his apparently inconsistent claims, the tribunal made observations that he appeared not to be making much sense and to be, in effect, making his evidence up as he went along.  It questioned him about relocating elsewhere in India.  He responded that the people who had attacked him were powerful and could chase him anywhere in India.  The tribunal pressed the husband on why he would not be safe in the location to which he had moved at the suggestion of the Party prior to returning to Ahmedabad for the elections.  He said that he had been scared there, received threatening phone calls, and thought his life was not safe.  Yet he confirmed with the tribunal that he had remained, subsequently, in Ahmedabad, where he had been subject to his claimed several beatings.

11. The tribunal also put to the appellant that in 2004 he had applied for a visitor’s visa to Australia, claiming that he had relocated from Ahmedabad to Hyderabad two years previously, after riots had taken place, and that he had a plastics business in Hyderabad.  The tribunal considered that the husband’s reaction at the hearing showed that he had been aware of those false claims in his application for a visitor’s visa and that that suggested he was a person prepared to tell lies.

12. The tribunal found that the newspaper accounts of when elections for the Ahmedabad Municipal Council had taken place and were next scheduled were matters of public record, and that this justified its finding that the husband was not telling the truth about his claimed involvement in Ahmedabad’s municipal election politics.  The tribunal found that there were significant inconsistencies between the husband’s accounts of when various attacks had taken place in relation to the holding of the elections, and that although the husband had said that he had forgotten a lot of things, it concluded that if he had been telling the truth about those incidents, and that they had all taken place within approximately the period of one year previously, he would have been able to give a more consistent account of their timings.

13. Accordingly, the tribunal, did not accept that the husband was telling the truth about his involvement in the Congress Party or the problems he had claimed to have had with the BJP Party and its associates that, he claimed, had forced him to leave India.  It did not accept that there was a real chance he would be threatened, attacked, killed, or otherwise persecuted by BJP Party members, or Hindus more generally, for reasons of any real or imputed political opinion, or because of the assistance he claimed to have provided to Muslims, when he returned to his home in Ahmedabad or elsewhere in India, now or in the reasonably foreseeable future.  The tribunal affirmed the delegate’s decision to refuse to grant protection visas.

    THE PROCEEDINGS BEFORE THE TRIAL JUDGE

14. The appellants’ grounds in their application to the Federal Magistrates Court originally asserted that the tribunal:

    ·had failed to provide them with an opportunity to appear before it, and thus to comply with the requirements of s 425;

    ·had no jurisdiction to make the decision, because it did not arrive at its reasonable satisfaction in accordance with the provisions of the Migration Act 1958;

    ·should have found that the appellants were refugees, but had not considered this and thus committed a factual and legal error;  and

    ·had failed to investigate their claims and, thus, its decision was affected by actual bias.

15. The appellants also relied on the grounds of an amended application before his Honour in which they claimed that:

    ·the delegate had committed a jurisdictional error because he had failed to deal with their claim under s 91R(2) of the Act, and that the tribunal repeated that error;

    ·the tribunal had failed to send the husband a notice under s 424A before it decided to dismiss his proceedings.

16. His Honour rejected each of those grounds.  He dealt with the amended application first.  He treated the first ground relating to the delegate as a complaint against the tribunal.  This was correct because any alleged error of the delegate was first, precluded by s 476 of the Act and, secondly, was legally irrelevant once the application for review was before the tribunal:  see e.g. Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344. His Honour proceeded by treating this complaint as one against the tribunal and noted that the particulars relied on in the amended application referred to factual matters concerning the husband’s claims to have feared persecution from the BJP because of his involvement with the Congress Party and his claims of having been assaulted and kidnapped. His Honour noted that this amounted to nothing more than a request for the Court to engage in a merits review: i.e. a review of the sufficiency of the appellants’ factual claims for protection. He was correct to have rejected this ground on that basis. Secondly, his Honour found that the assertion that the tribunal had failed to conduct its review having regard to the requirements of s 91R of the Act was general and unspecific. He found that the tribunal simply did not believe that the appellant was telling the truth. His Honour said that was a finding of fact within jurisdiction and was reasonably open to the tribunal on the material before it, and I agree: Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407. He said, and I agree, that the tribunal gave cogent reasons for the disbelief of the husband’s evidence. His Honour also found, and I agree, that there was nothing in the tribunal’s decision record to show that it had misunderstood or misapplied the relevant test under s 91R or elsewhere in the Act for the purposes of determining the appellants’ claims. He held, and I agree, that the tribunal’s findings were reasonably open on the material before it.

17. His Honour correctly rejected the claim under s 424A of the Act.  It was without substance.  There was no evidence put before his Honour to contradict the tribunal’s account of what had occurred at the hearing.  The tribunal was entitled to proceed as it did and was not required to afford any further opportunity to the appellants to put further material before it.  The newspaper articles were country information not specifically applicable to the appellants’ position.  Therefore, the tribunal was not required to give particulars of them to the appellants by reason of s 424A(3)(a).  His Honour was correct to have rejected this ground on that basis.

18. Moreover, the trial judge found that the tribunal had told the husband that he was entitled to seek additional time to comment on or respond to the information that the tribunal had given him during the course of the hearing.  However, the husband had said to the tribunal that he did not want to say anything further, he just wanted protection and he did not have any other information.  Having regard to the conduct of the review and the hearing before the tribunal, there is no reason to think that the provisions of s 424AA were not satisfied.

19. His Honour also rejected the grounds in the original application.  He found that the appellants had been given an opportunity to appear at the tribunal and had done so through the husband appearing by video link in accordance with an arrangement that had been made.  The trial judge concluded that the provisions of s 425 of the Act had been satisfied by the manner in which the tribunal had proceeded.  I agree with his Honour’s reasons.  His Honour was unable to identify any breach of the tribunal’s obligations under the Act and in particular under ss 91R, 424A, 424AA and 425.  Therefore, he rejected the second original ground.  I agree.  He also observed, correctly, that the third ground appeared to be nothing more than an assertion that the appellant had satisfied the criteria for being a refugee under the Convention and that this was nothing more than an attempt to engage in a merits review which the Court was unable to do.  His Honour rejected the last claim asserting bias on the ground that it was not supported in any way.  Again, I agree with his Honour for the reasons that he gave.

    THIS APPEAL

20. The appellants raised two grounds on appeal, namely that:

    ·his Honour did not find that there had been a lack of procedural fairness in the proceedings before the tribunal on the ground that it had failed to engage in an active and intellectual process in respect of their claims;

    ·the tribunal had failed to investigate the appellants’ claims of persecution in India and was therefore guilty of actual bias.

    Both of those grounds have no substance and identify no basis on which it could remotely be said that the tribunal had failed to consider the appellants’ claims in accordance with law.  Manifestly, the tribunal did consider those claims and found them not to be worthy of its acceptance.

21. During the course of the hearing today, the husband told me that “the result” had been arrived at very quickly and that he had not been given enough time in which to put his case.  He said that he had had to pay a lot of fees and that this had cost him a lot of money.  He claimed that when he appeared before the tribunal on 6 January 2010, he was under a lot of mental stress and that he could not reveal everything to the tribunal, but that if he was given more time by me, he could do so.  He said that he was upset and that he could not prepare properly but that he had not gone to any doctor or hospital.  He said that he could not put all his claims together although everything he had said was true.

1. It is apparent that the appellants had over a months’ notice to prepare for the hearing before the tribunal.  They did so aware from the delegate’s rejection of their claims that the husband’s credibility was very much in issue.  Tellingly, as I have noted, the tribunal informed the husband that he was entitled to seek additional time to comment on or respond to information it had given him during the course of the hearing.  But, he had said he did not want to say anything more and that he did not have any other information.

2. Having considered the whole of the material in the appeal papers and the husband’s submissions today, I am unable to perceive any jurisdictional error by the tribunal.  I consider that his Honour correctly dismissed the application.

3. For these reasons, the appeal must be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 August 2010