FEDERAL COURT OF AUSTRALIA

SZBZF v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1551

SZBZF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1496 of 2004

SACKVILLE J

SYDNEY

30 NOVEMBER 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate ([2004] FMCA 697) dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 28 October 2003.  The RRT affirmed a decision of a delegate of the respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

2                     The appellant is a citizen of India.  He arrived in Australia on 31 December 2002.  On 23 January 2003, the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 28 February 2003, a delegate of the Minister refused to grant the protection visa. 

3                     On 20 March 2003, the appellant applied to the RRT for review of the delegate’s decision.  On 27 August 2003, the RRT conducted a hearing at which the appellant attended and gave oral evidence with the assistance of a Hindi interpreter.

4                     As I have noted, the RRT’s decision was handed down on 28 October 2003.  The appellant then filed an application for judicial review.  The learned Magistrate delivered an ex tempore judgment on 29 September 2004 dismissing the application.

5                     The appellant made rather brief written submissions in support of his application to the Department for a protection visa.  These were not substantially amplified in the application to the RRT.  The RRT interpreted the application to it as claiming that the appellant had a well-founded fear of persecution in India by reason of his Muslim religion and also by reason of his political activity on behalf of the Samajwadi (Socialist) Party (‘SP’).  According to the appellant, the SP was the opposition to the Hindi nationalist Shiv Sena Party (‘SSP’).  The appellant claimed to be a ‘social worker’ for the SP, and said that he had been involved in local political protests.  He also made claims that he had suffered mistreatment on particular occasions by reason of his political activities.

6                     The RRT made the following findings:

1.                  The RRT noted that the appellant conceded at the hearing that he had not personally suffered harm in the past as the result of any general discrimination against Muslims in India.  Accordingly, he did not persist with his claim of persecution on this ground and the RRT found that he did not have a well-founded fear of persecution by reason of his Muslim religion.

2.                  The RRT accepted, as the appellant had claimed, that he had been detained for 24 hours following a cricket match in December 2001.  The appellant had suggested that the police were acting in association with the SSP in attempting to blame one of the teams for the violence, since that team was perceived to be associated with the SP.  However, the RRT found on the evidence before it that the appellant was detained in order to investigate the cause of the brawl and that this was done in accordance with the normal administration of Indian law.  It rejected the appellant’s claim that the police had acted in a discriminatory manner in association with the SSP.  The RRT took into account that the appellant had failed to mention this period of detention in either his original application or his application for review.

3.                  The RRT rejected the appellant’s claim, made at the end of the hearing, that he had been attacked in October 2002 by three men acting on behalf of the SSP.  The appellant had given a variety of inconsistent explanations for failing to make this claim at an earlier stage.  The RRT considered that his evidence on this issue was unreliable for this and a number of other reasons. 

4.                  The RRT accepted the appellant’s claim that his uncle had been taken from his (the appellant’s) house and that his whereabouts were still unknown.  The RRT acknowledged that this was a source of consternation for the appellant and his family.  However, the RRT was not satisfied that the police had been involved in the ‘kidnapping’ of the appellant’s uncle.  It also rejected the appellant’s claim of on-going police harassment as inconsistent with his willingness to approach the police for assistance in respect of other matters.  Accordingly, while the RRT found that the appellant might have mistrusted the local police, his approaches to them indicated that he did not have a subjective or well-founded fear of persecution stemming from police actions.

5.                  The RRT rejected the appellant’s claim that his uncle’s disappearance was evidence of the SSP’s pursuit of him for political reasons.  The RRT also rejected the appellant’s claim that other events in India demonstrated that he was at risk.  It found that during the period from March 2002 (when the appellant returned to India from a business trip to south east Asia) until his departure for Australia in December 2002, action by the SSP against him was confined to some malicious telephone calls.  The RRT was not satisfied that these phone calls, which had not led to any ‘consequential effects’, amounted to serious harm for the purposes of the Convention relating to the Status of Refugees.

6.                  The RRT accepted that local political pressures, including the malicious phone calls, created some apprehension on the part of the appellant, prompting him to concentrate on his business rather than political affairs.  However, the RRT found that none of the incidents, including the continued absence of the appellant’s uncle, represented an ongoing threat to the appellant.  Accordingly, the RRT found the appellant did not have a genuine and well-founded fear of persecution.

7.                  The RRT found that, in any event, it would be reasonable in all the circumstances, having regard to the appellant’s age, business experience and command of the Hindi language, to expect him to return to the Muslim dominated area of Mumbai, where his family had moved in 2002.  Alternatively, it was reasonable for him to locate elsewhere in India should he nonetheless be apprehensive about his safety.

For these reasons, the RRT found that the appellant did not have a well-founded fear of persecution on the ground of religion stemming from general discrimination against Muslims, or a well-founded fear of persecution on the ground of political opinion.

7                     The appellant appeared without legal representation before the Magistrate.  Her Honour noted that the application listed a number of general and unparticularised grounds.

8                     The most prominent claim advanced by the appellant was that the RRT had been biased.  The Magistrate considered both the question of actual and apprehended bias.  Her Honour found that there was nothing in the course of the proceedings before the RRT to indicate either that the RRT member was biased or that the conduct of the proceedings gave rise to a reasonable apprehension of bias.  Similarly, there was nothing in the material before her Honour to suggest that the RRT had not made an honest or genuine attempt to undertake the task required of it by statute.  On the contrary, her Honour considered (at [23]) that it was apparent from the RRT’s reasons that the appellant

‘was given every opportunity in the [RRT] hearing to make his claims and to address the [RRT’s] concerns and that moreover [the RRT] went to the extent of raising with the [appellant] its concerns at the end of the hearing regarding the evidence which had been presented to it as not indicating past or likely harm giving rise to a well-founded fear of persecution.’

9                     The Magistrate noted that the appellant had raised a natural justice ground but had provided no particulars in support beyond a general reference to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  There was, however, nothing to suggest that the factual circumstances of Muin v RRT had been established in the present case.  In particular, there was nothing to indicate that the appellant had been misled in any way by anything that the RRT had done.

10                  The Magistrate further found that the RRT had complied with the obligations imposed on it by ss 424A and 422B of the Migration Act 1958 (Cth).

11                  The notice of appeal to this Court follows a standard form that includes a reference to Muin v RRT, but does not identify any error of law on the part of the learned Magistrate.  The brief written submission provided by the appellant assert that the RRT ignored the merits of his claims and did not act in good faith.  The submissions repeat the claim rejected by the Magistrate that the RRT had been biased.

12                  There is nothing in the material before me to indicate that the Magistrate made any error of law.  The appellant failed before the RRT because, although some aspects of his account of events were accepted, the critical factual claims were rejected.  The appellant’s assertion that the RRT’s decision was affected by actual or apprehended bias is without foundation.  Similarly, the assertion that the RRT did not reach its conclusions in good faith must be rejected.

13                  I am not able to discern any basis upon which the Magistrate’s findings that the RRT had complied with its the statutory obligations could be said to be affected by an error of law.

14                  The appeal must be dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:              30 November 2004