SZOHK v Minister for Immigration and Citizenship

[2010] FCA 1291

FEDERAL COURT OF AUSTRALIA

SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291

Citation:		SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291
Appeal from:		SZOHK v Minister for Immigration and Citizenship [2010] FMCA 486
Parties:		SZOHK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 941 of 2010
Judge:		SIOPIS J
Date of judgment:		23 November 2010
Date of hearing:	12 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	34
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 941 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOHK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	23 NOVEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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 941 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOHK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	23 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 6 July 2009.  On 31 July 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. In his protection visa application, the appellant claimed to fear harm in India because he had been a witness to a murder.  The appellant claimed that on 7 July 2008, at about 11 pm, whilst on his motorcycle in Kodakara in Kerala state, he saw two unknown persons being chased by four other unknown persons, and that one of the two persons being chased had fallen over and was beaten with bicycle chains and knives.  The other person being chased, managed to escape.  The appellant claimed that one of the attackers saw him and went towards him.  The appellant said that he managed to escape on his motorcycle, but dropped his identity card in the process.

3. The appellant claimed that he later learned that the murder was an act of political revenge, and that the victim (who died from the assault) was a member of the Bharatiya Janata Party (BJP), and that the assailants were members of the Communist Party of India (Marxist) (CPI-M).  He claimed that about two weeks later CPI-M members came to his house, returned his identity card, and warned him not to give evidence about the incident.  He claimed that, about two months later, the other person who had been chased and had escaped, came to his house, having recognised him in the neighbourhood, and asked him to give evidence in court, so that the “CPM comrades” would be punished.

4. The appellant claimed that in November 2008, people from the BJP came to his house to take him to court to give evidence, but he refused.  He claimed they then attacked him, pushed him into a drainage canal causing him to fracture his left hand, dislocate his elbow and break a bone.  He claimed he was hospitalised for a week and his hand was in plaster for one month.

5. About a week later, said the appellant, the CPI-M again pressured him not to give evidence.  Rather than contacting the police, the appellant moved to Bombay for two weeks, but could not get a job so he returned home.  He decided that he should leave India.  After having tried to get a job in “the Gulf”, he then travelled to Australia on a class TU 572 student visa.

6. A delegate of the first respondent refused the application for a protection visa on 11 November 2009.

   THE TRIBUNAL

7. On 2 December 2009, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.  The appellant attended a hearing before the Tribunal.  The hearing took place over two days – having been adjourned after one day to give the appellant an opportunity to gather documentation material in support of his claim.

8. The Tribunal rejected the appellant’s claim to have witnessed a politically related murder.  At [80] of its reasons for decision, the Tribunal stated:

   I have no independent evidence before me to suggest that a BJP activist was killed by CPI-M activists on 7 July 2008 in Kodakara, Kerala.  The applicant explained this lack of information in the media and public domain about this attack, on 7 July 2008 in Kodakara, by stating that the incident was only reported in a “small local” newspaper.  I reject his explanation, I am of the view that were it the situation that a BJP supporter or activist was killed in Kerala and other BJP workers were injured, some mention would have been made in the independent sources.  This is because the Indian media reports extensively about politically motivated killings and attacks between the CPI-M and the BJP and furthermore the subsequent hartals by these political parties attract media attention.

9. The Tribunal went on to observe at [83]-[84] of its reasons:

   I am satisfied that the applicant did not witness a politically motivated attack between the BJP and CPI-M or any other political party supporters on 7 July 2008 in Kodakara.  I am also not satisfied that the applicant lost his ID card or that he or his family were harassed by BJP supporters or CPI-M supporters or any other political party supporters.  I am satisfied he was not harassed either personally or by telephone about giving evidence in a court case.

   Even were I to accept that the applicant was a witness to an attack and murder between different political party supporters, and even had he been threatened over giving evidence in court proceedings by both the BJP and the CPI-M, [and I do not] the harm he feared was not for a Convention related reason, that is for his race, religion, nationality, membership of a particular social group or political opinion.  Rather he feared harm because he was a witness to a murder and because he did not want to give evidence to a court.  When I suggested to the applicant that the motivation of his claimed attackers was not Convention related, the applicant agreed.  I am satisfied that had the applicant witnessed an attack between BJP supporters and CPI-M supporters, the harm he feared was not for a Convention related reason.

10. In any event, the Tribunal found that the appellant had not given the Indian police an opportunity to protect him.  The Tribunal said that there was no evidence in the country information that Indian police, or the police in Kerala, do not protect persons who are witnesses to crimes committed by politically motivated persons, or, as the appellant contended, that the police in India are always on the politicians’ side.  This contention of the appellant, said the Tribunal, did not find support in the country information and was contrary to a report, which was cited in the Tribunal’s reasons for decision, of a similar attack to that described by the appellant, where the police were reported as having arrested four persons in connection with a politically related fatal attack.

11. On 9 March 2010, the Tribunal affirmed the decision of the delegate.

    THE FEDERAL MAGISTRATES COURT

12. The appellant brought an application for judicial review of the Tribunal’s decision.  The grounds of review were set out in the appellant’s amended application for review, filed on 10 June 2010.  The grounds of review were:

    1.The Tribunal’s reasoning in rejecting the appellant’s claim to have witnessed a political killing in Kodakara, Kerala in July 2008 was irrational, illogical, and unreasonable, to the extent that the “satisfaction” required by s 65 of the Migration Act had not been reached.

    Particulars

    (a)The Tribunal’s reasoning was based on the following unstated assumptions which, (whether considered individually or cumulatively) were reached arbitrarily and without any basis in evidence.

    (i)Every political murder in Kerala would be reported.

    (ii)Every political murder in Kerala would be reported in English.

    (iii)Every political murder in Kerala would be reported in English in a form accessible to the Tribunal.

    (iv)The Tribunal would be able to access all such reports, should they exist.

    (b)The Tribunal’s reasoning is inherently contradictory.

    Further Particulars

    (i)The [appellant] stated that the murder was reported in a “small local newspaper”.

    (ii)The Tribunal rejected this explanation because,

    (A)It thought that there would be some mention of the murder in independent sources.

    (B)This was because the Indian media reports extensively about politically motivated killings and violence and subsequent hartals.

    (iii)The Tribunal therefore rejected the appellant’s explanation that the killing was reported on the basis that it would have been reported.

    2.The Tribunal failed to ask itself a question that was required to be asked in considering whether the harm that the appellant feared was for a Convention reason.

    Particulars

    (b)[sic]  Whether the appellant’s giving evidence, or refusing to give evidence (as the case may be) may have caused him to be imputed with a political opinion opposed to either the party that wanted him to give evidence or to the party that did not want him to give evidence.

    3.The Tribunal misinterpreted and misapplied the law when considering the question of whether the state could provide protection to the appellant.

    Particulars

    (a)The Tribunal failed to consider whether the Kerala Police could provide the appellant with a level of protection that he was entitled to expect according to international standards.

    (b)There was no evidence before the Tribunal to the effect that the Kerala police could or would protect a witness from harm.

13. The Federal Magistrate accepted the submission of counsel for the first respondent to the effect that, given the appellant had told the Tribunal that the alleged incident had been reported in the press, it was not irrational for the Tribunal to look for such reports or for it to reason that, because the Indian media reports extensively about politically motivated killings and attacks between CPI-M members and BJP, there would have been some report about the incident if it had occurred.

14. The Federal Magistrate found that the Tribunal’s findings in this regard were open to it on the evidence and material before it.

15. The Federal Magistrate found that the Tribunal’s findings were neither irrational, illogical, nor inherently contradictory, and dismissed ground one of the grounds of review.

16. In respect of ground two, the Federal Magistrate found that in the circumstances where the Tribunal rejected comprehensively the appellant’s claims of having witnessed a political murder and having been harassed and threatened as a result, there was no obligation on the Tribunal to consider whether the appellant’s giving evidence or refusing to give evidence, may have caused him to be imputed with a political opinion opposed to either party.

17. The Federal Magistrate said that, in any event, the Tribunal had put to the appellant that the harm he feared was not for a Convention reason, and the appellant had agreed with that proposition.  The Federal Magistrate went on to find that, in the circumstances, it was open to the Tribunal to find that any harm that the appellant may fear, if he was to return to Kerala, was not for a Convention related reason.  The Federal Magistrate held that, in the circumstances, ground two did no more than cavil with the findings of the Tribunal.

18. Having regard to the findings made in respect of grounds one and two above, and, in light of the appellant’s concession before the Federal Magistrate, that ground three did not arise in such circumstances, the Federal Magistrate did not proceed to consider ground three of the grounds of review.

19. On 8 July 2010, the Federal Magistrate dismissed the application for judicial review.

    THE APPEAL

20. The appellant filed a notice of appeal on 28 July 2010, which contained three grounds of appeal.  Those grounds are:

    1.The Court erred in finding that the Tribunal’s reasoning in rejecting the applicant’s claim to have witnessed a political killing in Kodakara, Kerala in July 2008 was not irrational, illogical, and unreasonable, to the extent that the “satisfaction” required by s 65 of the Migration Act had not been reached.

    2.The Court erred in failing to find that the Tribunal was required to consider the consequences of the appellant’s acting on the demands of one or other of the parties seeking to have him give evidence in Court (on the other hand) and not giving evidence (on the other), and specifically whether his actions may lead him to be imputed with a political opinion by either of those parties.

    3.The Court erred in failing to find that The Tribunal misinterpreted and misapplied the law when considering the question of whether the Indian state should provide protection to the applicant.

    Particulars

    (a)The Tribunal failed to consider whether the Kerala Police could provide the appellant with a level of protection that he was entitled to expect according to international standards.

    (b)There was no evidence before the Tribunal to the effect that the Kerala police could or would protect a witness from harm.

21. The appellant was not represented at the hearing.  The appellant advanced no arguments which elucidated the grounds of appeal.  The tenor of the appellant’s submissions was directed to the merits of his claim.  In this regard, the appellant was particularly anxious to advance the contention that the police in India were under the influence of politicians.

22. I deal with the first ground of appeal.

23. As mentioned, before the Federal Magistrate, the appellant sought to impugn the reasoning of the Tribunal which is set out at [8] above. The Federal Magistrate found that that Tribunal’s reasoning, on which it based its rejection of the appellant’s claim to have witnessed a “political murder”, was not illogical or irrational.

24. In my view, the Federal Magistrate did not err in coming to the view that she did.

25. In the High Court case of Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367, Crennan and Bell JJ considered the correct approach to assessing whether a ground of review that the Tribunal’s reasoning was irrational or illogical, had been made out. At [133], their Honours observed:

    [T]he correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which it did engage and to make findings it did make on the material before it.

26. In this case, the Tribunal hearing was held over two separate days.  The first hearing was on 28 January 2010 and the second hearing was on 11 February 2010.  At the first hearing, the appellant claimed that he had learned that the killing was a political killing because he had read a report to that effect in the newspaper.  The Tribunal then afforded the appellant an opportunity to produce documentary evidence in support of his claim.  At the resumed hearing on 11 February, however, the appellant did not produce any newspaper report, and sought to explain this failure to produce the report by claiming that the report had appeared in a “small local newspaper”.

27. Accordingly, it was the appellant’s case that it had been by reason of a newspaper report that he knew the killing was a political killing.  Further, the Tribunal itself referred to a report of a similar politically motivated attack at [74] of the Tribunal’s reasons for decision, which the Tribunal had found.  The Tribunal referred to that report as appearing in The Indian newspaper.  The Tribunal also referred at [78]-[79] of its reasons, to reports of “harthals” in the Kerala area which were related to political violence between supporters of the BJP and the CPI-M.

28. It is accepted that, in assessing jurisdictional error, the reasons for decision of the Tribunal are not to be scrutinised for the purpose of finding error.  Applying that approach, I understand the Tribunal to have come to its decision on the basis of the following reasoning process:  the appellant claimed to have learned that the killing was a political killing by reading a report to that effect in a newspaper, the appellant had not been able to produce the report he claimed to have relied upon, the Tribunal had not been able to find any such report of that incident, albeit that there was widespread reporting of political violence involving the BJP and CPI-M, and the associated “harthals”, and the Tribunal had been able to find a report of a political killing which occurred at about the same time and in similar circumstances to that described by the appellant, in The Indian newspaper.  In my view, in those circumstances, it was open to the Tribunal to adopt that reasoning process in order to determine whether to accept the appellant’s version of events.  It was also open to the Tribunal to come to the view that it did by the deployment of that reasoning process.  Accordingly, it was, in my view, neither irrational nor illogical, for the Tribunal to have adopted this approach in determining whether the alleged incident had occurred.

29. The Federal Magistrate did not err in rejecting the first ground of review.  The first ground of appeal is dismissed.

30. The second ground of appeal related to the Federal Magistrate’s finding that no jurisdictional error had occurred by the failure of the Tribunal to consider whether the appellant may have been imputed by each of the CPI-M and the BJP with a political opinion that it was by reason of his support for the other party, that he did not want to give evidence at trial.

31. In my view, the Federal Magistrate did not err in rejecting this ground of review.  It was not incumbent on the Tribunal to make the appellant’s claim for him.  Further, the appellant had not made any such claim.  The appellant stated, both before the Tribunal and, in fact, before this Court, that he was content to return to Kerala after the trial of the accused.  The appellant’s position, therefore, does not suggest that the appellant is of the view that the BJP (being the party that wishes him to give evidence) had imputed his reluctance to give evidence as being founded on the basis that he is a supporter of the CPI-M, nor the converse.  Further, and, in any event, as the Federal Magistrate observed, at [84] of the Tribunal’s reasons for decision, the Tribunal recorded that it did, in fact, put to the appellant that the motivation of his claimed attackers was not Convention related and the appellant agreed.  The second ground of appeal is dismissed.

32. As to the third ground of appeal, the Federal Magistrate did not deal with the third ground of review.  However, in my view, it was open to the Tribunal to reach the view that it did.  The complaint before the Federal Magistrate in relation to this ground of review was that the Tribunal failed to consider whether the Kerala police could provide the appellant with the level of protection that he was entitled to expect according to international standards.  It was also contended that there was no evidence before the Tribunal to the effect that the Kerala police could or would protect a witness.  However, the Tribunal had regard to country information describing the witness protection practices in India and the fact that there was provision in India to complain to higher authorities against the inaction of local police.

1. The choice of the country information which is relied upon by the Tribunal, and the weight accorded to it, is a matter within the jurisdiction of the Tribunal.  It was open to the Tribunal to come to the view that it did on the evidence before it.  In my view, therefore, the Tribunal did not fall into jurisdictional error.  The third ground of appeal is dismissed.

2. The appeal is dismissed.

I certify that the preceding thirty‑four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        23 November 2010