SZREB v Minister for Immigration and Citizenship
[2012] FCA 1366
FEDERAL COURT OF AUSTRALIA
SZREB v Minister for Immigration and Citizenship
[2012] FCA 1366
Citation: SZREB v Minister for Immigration and Citizenship [2012] FCA 1366 Appeal from: SZREB & Ors v Minister for Immigration & Anor [2012] FMCA 757 Parties: SZREB, SZREC and SZRED v MINISTER OF IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1292 of 2012 Judge: RARES J Date of judgment: 15 November 2012 Legislation: Migration Act 1958 (Cth) s 424A Cases cited: SZREB & Ors v Minister for Immigration & Anor [2012] FMCA 757 referred to Date of hearing: 15 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Appellants: The first and second appellants appeared in person Counsel for the First Respondent: Ms M Stone Solicitor for the First Respondent: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1292 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZREB
First AppellantSZREC
Second AppellantSZRED
Third AppellantAND: MINISTER OF IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1292 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZREB
First AppellantSZREC
Second AppellantSZRED
Third AppellantAND: MINISTER OF IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
15 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from a decision of the Federal Magistrates Court, refusing the appellants’ claim for constitutional writ relief from a decision of the Refugee Review Tribunal given on 17 January 2012, in which the Tribunal affirmed the Minister’s delegate’s decision not to grant the appellants protection visas: SZREB & Ors v Minister for Immigration & Anor [2012] FMCA 757.
The appellants are husband and wife and their one year old son, who are citizens of the Republic of India. The husband and wife arrived in Australia on 29 November 2008, so that the wife could take advantage of a higher education sector student visa by studying here. On 23 May 2011, the appellants lodged applications for protection visas. On 22 July 2011, the delegate refused the appellants’ applications for a protection visa, leading to the proceedings in the Tribunal that culminated in its decision, to which I have referred.
The appellants’ claims
Each of the husband and wife had individual claims for protection, and a joint claim which the Tribunal considered. The third appellant, who is the infant son, has no independent claims for protection, apart from those made by his parents. The appellants are Hindus who lived in India in a predominantly Muslim city. The wife claimed that in 2006 she was working as a freelance journalist and social activist, when she witnessed violent crimes perpetrated by Muslims against Hindus. She claimed that when she reported what she had seen both to the police and in the media, the authorities did not assist her and she became the target of Muslim harassment, associated with the fact that, as a Hindu, she had reported on Muslim crimes against Hindus. In addition, the wife claimed that if she is compelled to give evidence against the Muslims whose crimes she reported, she will be targeted by the Muslim groups. She also claimed that she would be the target of Muslim threats because of her association with her husband and his family’s involvement with a Hindu political party, known as the RSS party. The wife also claimed that the persons who kidnapped her husband in 2006 would seek to harm her again in the future, together with their child, were she to return to India. She claimed that the authorities throughout India, and not just Gujarat, would not protect her from persons involved with Muslim sectarian violence whom she fears.
The husband claimed that both he and his father were active members of the RSS party. He claimed that in 2006 he had been kidnapped by Muslims for 48 hours and had been targeted because first, he had information regarding the illegal arms trade and secondly, he and his father had been involved with the RSS party. The husband claimed that the kidnappers were seeking to extort money from his family and that the ringleader was a prominent criminal. The husband claimed that the criminal had been detained by the authorities in relation to his kidnapping but was released on bail about 10 weeks later and that this person and his associates would seek to harm him in the future. He claimed that because of the level of sectarian violence throughout India there was nowhere in that country that was safe for him and his family and that the Indian authorities will not protect him and his family from the persons of Muslim association whom he fears.
The occasion for the appellants’ decision to apply for a protection visa arose because the wife said she had received a telephone call on 20 May 2011 from her father-in-law. She claimed that he had warned her not to return to India due to the worsening situation caused by some Muslims and that the appellants’ lives would be in danger, as were her father-in-law’s, and his family’s. She claimed that her father-in-law also told her that some Muslims had attacked his house in India and injured him.
The Tribunal’s decision
The Tribunal found that the husband and his father were involved with the RSS party and accepted his claim that he had been kidnapped in 2006 and held for ransom. It also accepted the wife’s claim that during 2006 she had approached the authorities to report, and she also had reported in the media in their hometown, about crimes which were committed during sectarian violence. However, it concluded that her claim to fear reprisals, were she required to give evidence about those matters, was mere speculation and that she was not a person of interest to Muslims in India who were implicated in that sectarian violence. The Tribunal relied for that finding, in part, on the fact that in the two years after her activities in 2006, the wife continued to live normally without becoming a target or person of interest to the persons whom she claimed to fear.
The Tribunal found that the husband had been kidnapped by criminals who were primarily seeking to extort money from his family. It was not satisfied that he had been targeted for any reason arising under the Refugee Convention. It was satisfied that the circumstances surrounding his kidnapping and motivations of those who kidnapped him ended when his release was secured in 2006, and that he was not afterwards a person of interest to his kidnappers or those involved with them. It also relied on the fact that nothing had happened between the husband's release and what was said to have occurred in 2011 to suggest that he remained a person of interest to, or the target of, any sectarian groups, such as hostile Muslim groups.
The Tribunal also considered the joint claim of the husband and wife that, as Hindus and by reason of the husband’s involvement with the RSS party, they would be targeted by Muslims in the town where they lived and by Muslims generally throughout India. The Tribunal accepted that each of the husband and wife feared returning to India for the reasons that they gave. However, the Tribunal did not accept that those fears were well-founded fears of persecution for a Convention reason. It was not satisfied that the wife was a person of any adverse interest to particular Muslims or Muslims in general. It accepted that there was sectarian violence in India between Muslims and Hindus, and that the husband and wife were both afraid of that. However, the Tribunal was satisfied that neither of the husband nor the wife was a person of particular or specific interest to Muslims in general or to any particular Muslim group.
Critically, the Tribunal found that the authorities in India provided a standard of protection for its citizens that included a suitable criminal law, a reasonably effective and impartial police force and a justice system that was consistent with international standards. It found that if the appellants required protection from any of the persons they feared, they would have access to a reasonable level of protection provided to them by the Indian State, were they to return there. For those reasons, the Tribunal was not satisfied that the appellants faced a real chance of persecution for reasons of religion, political opinion or any other ground under the Refugee Convention. Accordingly, it affirmed the decision of the delegate to refuse to grant protection visas.
The proceedings before the trial judge
The trial judge found in her careful judgment the background facts, the claims that the appellants had made to support protection visas being issued to them, and the relevant findings that the Tribunal made on those claims. The appellants made a detailed written submission to her Honour about the reasons why they said that she should set aside the decision of the Tribunal. The appellants have relied on the same written submissions before me. The wife also made oral submissions to her Honour and both the husband and wife made oral submissions to me.
The appellants made two complaints before her Honour about the Tribunal’s decision. First, in substance, they complained that the Tribunal had denied them procedural fairness by failing to allow them to comment on a first information report dated 1 November 2006. That recorded the husband’s mother’s complaint to the police in relation to his kidnapping. Secondly, they complained that the Tribunal had not properly considered their fear of persecution in accordance with their claims. In addition, the appellants complained that the Tribunal was biased.
Her Honour dismissed each of those complaints. First, her Honour found that the first information report did not need to be raised specifically by the Tribunal with the appellants for their comment, because they had provided it to the Minister’s Department for the purposes of seeking their protection visas. Thus, s 424A(3)(ba) of the Migration Act 1958 (Cth) authorised the Tribunal to proceed as it did in relation to that document. Since the first information report confirmed the claim that the husband had been kidnapped in 2006, it was not information capable of being viewed as adverse to the appellants. Thus, the Tribunal had no obligation to discuss its contents with the appellants under s 424A of the Act.
Her Honour also considered the appellants’ arguments concerning the way in which the Tribunal had assessed the evidence relating to the husband’s kidnapping and its findings about the relationship between that event and the Muslim persons whom they claimed to fear. Those claims included the appellants’ fear of further targeting by Muslims who were associated with or interested in them in the way the kidnappers had been. Her Honour considered that those contentions sought a review of the merits of the Tribunal’s decision and were outside the scope of the proceedings before the Court. She found that no jurisdictional error had been established in relation to the way in which the Tribunal dealt with this first aspect of the appellants’ claims. In my opinion, her Honour was correct so to find for the reasons which her Honour gave.
Her Honour rejected the second ground of review on the basis that the Tribunal’s findings were made on the evidence and material before it and were open to it for the reasons it gave. Her Honour pointed out that the Tribunal had accepted that the appellants had a subjective fear of harm based on the matters on which they relied. However, her Honour noted that the Tribunal had not been satisfied that their fears were well-founded fears of persecution for a Convention reason. In my opinion, her Honour was correct for the reasons she gave to dismiss the second ground.
Her Honour also rejected the additional argument of bias, which the appellants had raised in their written submissions. The appellants had argued that the Tribunal had predetermined their claim adversely to them. Her Honour held that the only evidence of the Tribunal’s thought processes was its decision record. This was because the appellants did not tender in evidence before her Honour a transcript of the hearing before the Tribunal. The trial judge found that a fair reading of the Tribunal’s decision record did not disclose any prejudgment on its part that could suggest it was biased or appeared to be biased. In my opinion, her Honour was correct to find in that way for the reasons she gave.
This appeal
The appellants’ notice of appeal and their written submissions to this Court in substance raised the same arguments that the appellants had raised below in their application. Those arguments were fully considered by her Honour. During the course of the hearing today I explained to the appellants the need for them to identify a legal basis on which the Court could find that the trial judge or the Tribunal had made an error, if they were to succeed.
Each of the appellants invited me to look at the merits of their case based on the fears that they have for their future were they to return to India. They expressed concern for the future of their child on the same basis. They did not accept the Tribunal’s findings that they were not of interest to particular Muslim groups or would not otherwise be targeted by Muslims for a Convention reason.
All of those views are understandable but, as I sought to explain to them, the Court has the function of reviewing whether the decision of the Federal Magistrates Court was in error and, if need be, to ensure that the Tribunal’s decisions on their claims had been reached in accordance with law. Even though the Tribunal found that the appellants on their claims had a genuine fear that if they were to return to India they will be subjected to adverse consequences at the hands of Muslims, they did not establish before her Honour or me that the Tribunal made a jurisdictional error in its assessment of their claims.
Conclusion
It follows that the appeal must be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 17 December 2012