SZQSU v Minister for Immigration and Citizenship

[2012] FCA 875

FEDERAL COURT OF AUSTRALIA

SZQSU v Minister for Immigration and Citizenship [2012] FCA 875

Citation:	SZQSU v Minister for Immigration and Citizenship [2012] FCA 875
Appeal from:	SZQSU v Minister for Immigration & Anor [2012] FMCA 205
Parties:	SZQSU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 509 of 2012
Judge:	NICHOLAS J
Date of judgment:	8 August 2012
Legislation:	Migration Act 1958 (Cth) ss 424A, 425
Cases cited:	Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 509 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQSU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	8 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs, which are fixed in the amount of $2,423.

Note:Settlement and entry of orders is dealt with in Rule 39.32 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 509 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQSU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	8 AUGUST 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an appeal by the appellant from a judgment of Federal Magistrate Driver delivered on 14 March 2012 dismissing an application to review a decision of the Refugee Review Tribunal (Tribunal) for jurisdictional error.  The Federal Magistrate concluded the decision of the Tribunal was free from jurisdictional error. 

2. The appellant is an Indian citizen of Jatt ethnic origin and Sikh religious faith who arrived in Australia on 3 February 2011.  On 21 February 2011, the appellant applied for a protection visa.  The appellant’s wife and son were shown as family members on the protection visa application.  A delegate of the first respondent made a decision to refuse the visa application on 5 May 2011. 

   REFUGEE CLAIMS AND THE TRIBUNAL’S DECISION

3. The Tribunal affirmed the decision of the delegate on 14 September 2011.  At the time of the Tribunal hearing, the appellant and his wife had separated and she and her son had left Australia and returned to India.  The appellant alone made an application for judicial review in the Federal Magistrates Court.  The appellant’s primary claim is that he feared persecution in India because of his political beliefs and his membership of a particular social organisation, the Bharatiya Janata Party (BJP).  He claimed that he became a member of BJP in August 2009, and was active in the 2009 elections.  The appellant claimed that his father was also a member of the BJP. 

4. The appellant claimed that his father-in-law was a member of the Congress party.  The appellant claimed that his father-in-law had objected to the appellant’s marriage with his daughter due to their differing political opinions.  The appellant claimed that in 2006, his father-in-law brought a case against him for allegedly abusing his wife, which the appellant claimed was false and politically motivated.  The appellant claimed that he was found not guilty of the charges after his wife gave evidence in his favour.  He claimed that his in-laws had physically attacked him previously in 2007, but that those attacks were unrelated to his political activities.  However, he claimed that if he is required to return to India, his wife’s father and brothers will again target him. 

5. The appellant also claimed he had been warned by Congress party “thugs” in 2009 not to visit slum areas, and that he should cease his involvement in politics.  He claimed that he ignored these threats, and subsequently was attacked during a political meeting on 2 May 2009.  He claimed this incident happened in the lead-up to the 2009 election, which the Congress party subsequently won. 

6. The Tribunal accepted the appellant’s in-laws harassed him, and that he and his father were supporters of the BJP in India.  However, the Tribunal was not satisfied that the appellant was targeted by his wife’s family because of his political beliefs.  The Tribunal noted that the appellant’s description of events indicated that the animosity between him and his wife’s family began for private reasons before he became politically active. 

7. The Tribunal questioned the appellant about the BJP and came to the view that he knew little about the recent election or the BJP.  Although the Tribunal accepted that he was a BJP supporter, it did not accept as credible the appellant’s claim that he was an active member of the BJP or had a long association with it.  The Tribunal concluded that the appellant had exaggerated both his involvement with the BJP and the political aspects of his difficulties with his wife’s family to enhance his visa application.  The Tribunal also concluded that the threat from the appellant’s wife’s family had diminished substantially or entirely as a result of the appellant and his wife separating. 

8. The Tribunal found that the harassment the appellant claimed he had suffered was not Convention related.  It did not accept that the authorities had targeted the appellant.  Nor was it satisfied that the appellant was targeted for a Convention reason or was at risk of harm by his wife’s family for a Convention reason.  The Tribunal affirmed the decision of the delegate to refuse to grant the appellant the protection visa. 

   PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

9. In his application to the Federal Magistrate, the appellant relied upon the following grounds:

   1.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness for its failure to consider that I was harassed by my in-laws and the harassment was politically motivated. The Tribunal did not give me an opportunity to submit our explanations and material in reply to the alleged adverse materials. If the opportunity was given it could have led to a different decision by the Tribunal.

   2.The Tribunal in its decision stated that I was not targeted by authorities and denied protection. The Tribunal failed to consider my well-founded fear of persecution in relation to my political belief. The Tribunal ignored the persecutions I experienced in India and made errors of jurisdiction.

   3.The Tribunal failed to consider me as credible witness and refused my application and made errors in law amounting to jurisdictional error.

   4.The Tribunal failed to accord procedural fairness for its failure to consider that I was at risk of harm by my wife’s family in India and I shall be harmed if I return back to India and also the reason of my harm is Convention related.

10. The Federal Magistrate concluded that grounds 1, 2 and 4 were misconceived and factually incorrect.  The Federal Magistrate found that it was apparent from a close reading of the decision of the Tribunal that it took into account and considered all the facts and matters put to it by the appellant. 

11. The Federal Magistrate found that the Tribunal expressly considered the following claims: 

    1.that the appellant had suffered politically motivated harassment by his wife’s family;

    2.that the appellant would continue to be at risk of harm because of his wife’s family if he returned to India;

    3.that the appellant was targeted by authorities and denied protection;

    4.that the appellant suffered persecution in India by reason of his political beliefs, including attacks upon him by members of the Congress Party; and

    5.that the harm the appellant had suffered in India by his wife’s family was Convention related.

12. The Federal Magistrate noted that the Tribunal considered each of the appellant’s claims.  His Honour also noted that the Tribunal found that the appellant was not a witness of truth and did not have a genuine fear of persecution by his wife’s family or political opponents.  What the Federal Magistrate described as the appellant’s “real complaint” appeared to be that the Tribunal ought to have accepted the appellant’s evidence and accepted his claims.  The Federal Magistrate found that the Tribunal’s handling and analysis of the appellant’s evidence and his claims disclosed no error of law.

13. In relation to the complaint of the denial of procedural fairness, the Federal Magistrate found that such a complaint could not succeed. First, the appellant was invited to attend, and did attend, the Tribunal hearing in accordance with s 425 of the Migration Act 1958 (Cth) (the Act). Secondly, the Tribunal did not rely on any information which would create an obligation pursuant to s 424A of the Act. Thirdly, there was no obligation on the Tribunal to put to the appellant for comment its reasoning process or its assessment of the evidence, although his Honour found that the Tribunal did raise its concerns with the appellant during the hearing and gave him opportunities to respond.

14. The Federal Magistrate also concluded that ground 3 was “misplaced” as it challenged the credibility findings of the Tribunal.  The Federal Magistrate stated that this finding was a matter for the Tribunal as it was “at the core of the Tribunal’s jurisdiction to make findings of credibility”.  In this connection, his Honour made reference to the often cited passage in the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at para [67].

15. It appears that the appellant also argued before the Federal Magistrate that the questioning of him at the hearing was unfair.  His Honour concluded that the Tribunal was entitled to question the appellant about his political involvement (as it did) and there was no legal error in its approach.  Similarly, the Federal Magistrate held there was no error in the approach of the Tribunal to reason from its questions and the answers of the appellant that the appellant would be able to safely pursue his limited interest in politics in India. 

16. The appellant also appears to have argued before the Federal Magistrate that he was denied the opportunity to produce documents after the Tribunal hearing.  This point was apparently raised for the first time in the appellant’s submissions in reply to the Federal Magistrate. 

17. His Honour found the appellant had been given an opportunity to submit further documents but that he had not done so within time.  Apparently, the appellant told the Federal Magistrate that the documents (which the appellant had not brought to the Court and which remained untranslated in the Hindi language) were documents substantiating the existence of legal proceedings instituted against him by his wife’s family, involving a dowry claim.  The Federal Magistrate noted that there was no evidence to support the complaint made by the appellant in relation to these documents, which was founded upon assertions made to his Honour from the bar table.  In this regard, it appears that the appellant asserted that the legal proceeding to which the documents in question were said to relate was based upon false allegations and was improperly motivated. 

18. The Federal Magistrate found that if the relevant documents did exist, they would not have had a bearing on the Tribunal’s reasoning that the appellant’s problems with his wife’s family and his consequential fear of harm was not Convention related.

    THE APPEAL PROCEEDINGS

19. The grounds of appeal filed by the appellant raise seven matters:

    1.The Federal Magistrate erred in law not finding the failure of the Tribunal to consider that I was not a victim of persecution for my political belief prior to my departure from India.

    2.The Honourable Federal Magistrate did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal did not give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my political belief if returned back to India and made errors of jurisdiction.

    3.The Federal Magistrate made error to find that the Tribunal failed to accept me as a credible witness for my claims for a Protection Visa.

    4.The Federal Magistrate erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a Convention reason and I 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 refused my application on the ground that I was harassed by my wife’s family and my father and I was the supporter of BJP but I exaggerated my claims and refused my application disregarding my chance of being persecuted prior to my departure from India and also if returned back to India.

    6.The Federal Magistrate erred in law not finding that the Tribunal failed to consider that my persecution is well founded and I shall have a real chance of persecution for reasons of my political opinion if I return to India now or in the foreseeable future and the persecution is not Convention related.

    7.The Federal Magistrate erred in law not finding that the Tribunal failed to consider that the false case filed against me was politically motivated and my life will not be at risk if returned back to India.  The Tribunal also found that I shall not face a real chance of persecution in India by my wife’s family or political opinion or any other Convention ground and refused my claims.

    [errors in original]

20. Most of the grounds of appeal relied upon by the appellant are misconceived in that they appear to proceed on the mistaken assumption that the Federal Magistrate was able to, and ought to have, overturned findings of fact and credibility made by the Tribunal.  In this regard, the appellant is seeking to have the Tribunal’s decision reviewed on the merits rather than for jurisdictional error.  The Federal Magistrate was only entitled to set aside the Tribunal’s decision if satisfied that it was affected by jurisdictional error. 

21. To the extent the grounds of appeal suggest that the Tribunal failed to consider any relevant fact or submission, I think they must be rejected.  The Federal Magistrate observed, correctly in my view, that a close reading of the Tribunal’s reasons for decision demonstrates that the Tribunal took into account all relevant facts and matters put to them by the appellant.  This includes the factual matters relevant to each of the five claims expressly considered by the Tribunal which I previously identified (at para [11] above]. 

22. During the course of the hearing before me, the appellant (who did not file any written submissions) made some oral submissions which I may deal with briefly.  He suggested that the Tribunal erred in failing to give him enough time to put his arguments.  I am not satisfied that this complaint has any substance.  No such complaint appears to have been raised before the Federal Magistrate, except in relation to the additional documents which the appellant claimed he wished to rely upon.  The latter complaint was not supported by any evidence before the Federal Magistrate and, in particular, the documents themselves were not before the Federal Magistrate.  If one accepts what the appellant told the Federal Magistrate about the documents, it is still impossible to see how they could have, even if received by the Tribunal, led to any different result.  In this regard, I agree with the observations of the Federal Magistrate.  The findings of the Tribunal make it clear that it did not accept that any fear of persecution by the appellant’s wife’s family was Convention related. 

    DISPOSITION

23. In the result, the appeal will be dismissed.  The appellant must pay the first respondent’s costs which will be fixed in the amount of $2,423.  

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:       21 August 2012