FEDERAL COURT OF AUSTRALIA

SZCCX v Minister for Immigration & Multicultural Affairs [2006] FCA 1006

MIGRATION – no point in principle

SZCCX AND SZCCY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 785 OF 2006

CONTI J

4 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the Minister’s costs of $1,800.00.

3.                  The designation of the first respondent be as recorded above, that is to say, by omission of reference to ‘Indigenous’.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the judgment of Federal Magistrate Barnes given on 6 April 2006, which included the dismissal of an application for judicial review of a decision of the Refugee Review Tribunal handed down on 18 November 2003. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2                     The appellants are a husband and wife and are citizens of India. They claim a well-founded fear of persecution in that country of their origin by reason of the appellant husband’s political association and activity with the Congress Party in Gujarat. The appellant husband claimed in his statement to the delegate that he strongly condemned the Godhra train tragedy in February 2002, and because of his activities in helping victims and arranging rallies to have the culprits of that incident arrested and punished, he became the target of extremists from the Bharatiya Janata Party (BJP) and the Rashtriya Swayamsewak Sangh (RSS), who burnt his office, destroyed his business and made threatening phone calls demanding that he leave the Congress Party. The appellant husband claimed that he reported those threats to the police, but that no action was taken. The appellant husband also claimed that as a result of his association with the leading candidate for the Congress Party, he was beaten by the same extremists so severely that his arm was broken and he was hospitalised.

3                     The Tribunal found that the appellants claims lacked the necessary detail to establish relevant facts sufficient to establish refugee status, and in particular that it was not satisfied that the appellants had a well-founded fear of persecution. The Tribunal accepted that the appellants lived in the epicentre of the violence which occurred in Gujarat, but that the arson of the husband’s business was more plausibly explicable as an aspect of the general violence and pattern of destruction. The Tribunal cited independent country information as a demonstration of the fact that perpetrators of the violence directed the same towards Muslim people, whereas the appellants are Hindu, and accordingly their claim that the police would not assist them was not credible, as well as was unsupportable to the extent of its alleged detail. The Tribunal also found that it was unlikely that the appellants were targeted because of criticism of Gujarat’s Chief Minister, since the male appellant in particular was but one of many critics of the BJP and RSS. The appellants also failed to provide details explaining why they were targeted. Although the appellant’s claimed that relocation was not possible the Tribunal notified the appellants in any event that it was not able to make a decision in their favour based on the information placed before the delegate, and invited the appellants to attend the hearing and address their claims orally to the Tribunal Member. However it was said that the appellants wrote to the Tribunal declining that offer and asked for a determination in their absence.

4                     The appellants asserted in their further amended application filed on 20 January 2005 that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa, and that the Tribunal failed in that regard to consider properly the chance of persecution if they were returned to India. The appellants advanced the following details in support of those assertions: first that the appellant husband was persecuted by Muslims because of his political popularity; secondly that the appellants were unable to collect documentary evidence; thirdly that the Tribunal did not provide the appellants with adequate particulars of the independent country information; fourthly that the Tribunal did not provide the appellants with adequate opportunity to respond to the substance of this information; fifthly that the information used by the Tribunal did not show that Congress politicians are safe; sixthly that the appellants did not get an opportunity to attend the Tribunal hearing because they were not informed of the consequences of non-attendance or the hearing procedure; seventhly that the appellants needed an opportunity to give oral evidence and the decision of the Tribunal was affected by a lack of procedural fairness; and eighthly, that since the appellants had been persecuted by the BJP, it would not be possible for them to relocate in India.

5                     The Federal Magistrate found that the Tribunal’s decision was unaffected by jurisdictional error and therefore dismissed the application with costs. The Federal Magistrate further found that the Tribunal had not been satisfied that the appellants had a well founded fear of persecution because of the absence of evidence to support their claims. The appellants admitted that they could not provide evidence by then not forthcoming, and did not attend the hearing as a consequence of bad advice. Moreover the independent country information was said by Barnes FM to fall within the exception under s 424A(3)(b) of the Migration Act 1958 (Cth) (‘the Act’), and did not require notification of the Tribunal’s citation thereof. The reasoning of the Tribunal concerning the lack of detail in the appellants application and their failure to attend the hearing, were said to be matters of evaluative reasoning, inclusive of their thought processes, which were not required to be brought to the attention of the appellants. Barnes FM further found that the ground for review challenging the independent country information used to demonstrate that members of the appellant husband’s political party were safe was misconceived, since the Tribunal had found that the appellants had not provided enough evidence to establish that the appellant husband was in fact targeted, and had rejected the notion that relocation was not an alternative open to the appellants. Moreover Barnes FM explained that the Tribunal did consider the consequences of relocation in India, and found that so much would be possible having regard to the material placed before it to the effect that the appellant husband held business interests in four States of India and the BJP was not a dominant political party in other States. The Federal Magistrate further held that the Tribunal’s decision did not lack rational and logical reasoning and did not contravene the Act because the appellants made the choice not to give further evidence, and consequently the Tribunal was entitled to proceed on that footing.

6                     The notice of appeal raised the following grounds: first, that the Federal Magistrate erred in failing to find jurisdictional error in the Tribunal’s decision; secondly that the Tribunal failed to ‘assess the harm from the perspective of the persecutor’ when considering the question of well-founded fear; thirdly that the Tribunal did not properly consider the basis of fear of persecution and ignored the appellant husband’s evidence concerning his political activities; fourthly that the ‘Tribunal adopted a harsh approach’ and failed to give ‘importance to the real issues’ relevant to the case as to denial of procedural fairness in favour of the appellant. In relation to that final ground, the notice of appeal stated that the appellant husband informed the Federal Magistrate why the appellants did not attend the hearing, but the Federal Magistrate did not believe his testimony that he had relied for assistance and advice on his migration agent who did not however make him aware of the consequences of non-attendance at the Tribunal.

7                     At the hearing of the appeal in this Court, the appellant was unable to demonstrate, nor did he seek to demonstrate, error in any of the Tribunal’s reasoning, but instead sought an adjournment to enable he and his wife to obtain evidentiary material from India in refutation of the Tribunal’s findings. He did not detail explicitly what that evidence might be, or its particular source, and in any event in the light of the Minister’s understandable opposition to any adjournment for that purpose, I rejected that request at the instance of the Minister’s solicitor. Plainly the appellants having first arrived in Australia on 21 February 2003, the Minister’s opposition could not be described as unjustifiable, particularly since nothing specific of potential significance was indicated as likely to be forthcoming.

8                     Accordingly I ordered that the appeal be dismissed.

Associate:

Dated: 4 August 2006