FEDERAL COURT OF AUSTRALIA

SZCQX v Minister for Immigration & Multicultural Affairs [2006] FCA 1556

Migration Act 1958 (Cth) s 424A(1)

MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 cited

VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 cited

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited

SZCQX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1021 OF 2006

BENNETT J

30 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal is joined as the second respondent. 

2.                  The appeal is dismissed.

3.                  The appellant is to pay the first respondent’s costs.

4.                  Leave is granted to the first respondent to file and serve an affidavit in support of any application for fixed costs within two days.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of India and claims to have a well-founded fear of persecution because of his religious beliefs as a Muslim living in Tamil Nadu and his political activities in the “Tamilnadu Muslim Munnetra Kangagam” party (‘TMMK’).  He claims that the TMMK was attacked by the Rashtriya Swayamsewak Sangh party (‘RSS’) while peacefully demonstrating against the deaths of innocent Muslims in Iraq in April 2003.  The appellant says that he went away the day after that attack.  Other members of the TMMK were attacked and hospitalised while he was away.  When the RSS could not find him, he claims they burnt down his shop.

2                     The Refugee Review Tribunal affirmed the first respondent’s decision not to grant him a protection visa and he applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  Federal Magistrate Barnes dismissed that application on 11 May 2006 and the appellant appeals his Honour’s judgment in this Court (SZCQX v Minister for Immigration [2006] FMCA 777).  

3                     The appellant appears in person assisted by an interpreter.  His notice of appeal sets out a number of matters in general terms and he filed written submissions in a form that this Court has seen before in relation to other appellants.  Although the notice of appeal and the submissions raise only very general grounds of appeal, counsel for the Minister has summarised those grounds and the appellant makes no complaint about her summary.  The issues raised are as follows:

·         Whether the Tribunal did not follow the proper procedure and/or there was a lack of procedural fairness as in Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’).

·         Whether subss 66(1) and 66(2) of the Migration Act 1958 (Cth) (‘the Act’) were not observed.

·         Whether the Tribunal ignored relevant evidence, including failing to take into consideration the ‘verdict from India country report’.

·         Whether the Tribunal’s ignoring of relevant evidence and its findings in the face of contradicting independent evidence indicates actual bias.

·         Whether the Tribunal ignored the merits of the appellant’s claims.

·         Whether the Tribunal breached subss 430(1)(c) and 430(1)(d) of the Act. 

·         The consequences of the Tribunal’s failure to comply with s 424A(1) of the Act.

4                     Generally, the appellant said that he had nothing to add to his written submissions.  I drew his attention to the fact that this was his appeal and that his submissions were lacking in detail.  He acknowledged that fact.  I asked him whether he had any specific matter that he wished to raise in relation to the Federal Magistrate’s decision and he said that he had nothing to say about that decision.

The Tribunal decision

5                     As to the Tribunal’s decision, I make one observation at the outset.  The Tribunal accepted that the appellant was a Muslim and stated:

‘I am satisfied, and find, that merely being a Muslim is sufficient to give rise to a well-founded fear of persecution for the reason of religion or any other Convention reason.’ 

6                     The Tribunal then proceeded to consider the claims of the appellant with respect to the events in Tamil Nadu and found that he did not have a well-founded fear of persecution for a Convention reason.  In the context of the whole of the Tribunal's reasons I am satisfied there was a typographical error and that the Tribunal’s reasons should read ‘being a Muslim is insufficient to give rise to a well-founded fear of persecution’. 

7                     To the extent that the appellant has raised a complaint in respect of the Tribunal's reasoning process, this passage was not pointed to.  In any event, I do not see a flaw in the Tribunal’s reasoning if the passage is read that way.

8                     The Tribunal made general findings about the manner in which the appellant had given evidence.  It found that he had given his oral evidence in a generally vague manner.  It did not accept that the appellant was the target of police and RSS harassment.  It found that even if the incident in April 2003 as described by the appellant had occurred, any risk of harm that he now faced because of religion or a political opinion imputed to him would be confined to his home town.  The Tribunal stated that it appeared that the appellant could relocate within India where the risk of Convention related harm would be remote.

9                     The Tribunal was satisfied that it would be reasonable for the appellant to so relocate and that if he did so his fear of Convention related persecution would not be well-founded. 

The Federal Magistrate’s decision

10                  The appellant’s grounds of appeal before Barnes FM were similar to those raised in this Court.  Her Honour methodically addressed the grounds of appeal and found that they were generalised assertions unsupported by evidence.  The appellant did not establish jurisdictional error on the part of the Tribunal.  The Minister raised a conceded failure to comply with s 424A(1) of the Act.  Her Honour, however, did not find that that failure warranted the setting aside of the Tribunal’s decision.  Her Honour accepted, within the reasoning of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [233], that there had been an entirely separate basis for the decision, namely that it would be reasonable for the appellant to relocate within India (at [37]).  That independent finding provided a basis to uphold the validity of the decision. 

Grounds of Appeal

Failure to accord procedural fairness and Muin

11                  Federal Magistrate Barnes found that the factual basis for the denial of procedural fairness as in Muin was not established in the circumstances of this case (at [12]).  In particular, her Honour noted that there was no statement of agreed facts or, indeed, any evidence before her Honour to establish a factual basis akin to that made out in Muin.  Her Honour’s approach reveals no error.

Failure to comply with subss 66(1) and 66(2) of the Act

12                  The Minister is required to notify the applicant for a protection visa of her decision to grant or refuse the visa in accordance with s 66 of the Act.  The allegation that there had been a failure to comply with subss 66(1) and 66(2) of the Act was not raised before the Federal Magistrate and the Minister submits that it ought not to be raised for the first time on appeal.  In any event, as noted by counsel for the Minister, pursuant to s 66(4) of the Act any failure to give notification of a decision does not affect the validity of Minister’s decision. 

13                  I note further that there is no evidence that the appellant did not receive the Minister’s decision.  There is evidence that the Minister’s decision was sent to the appellant.  Further, the application to the Tribunal was filed within time (s 412(1)(b) of the Act).  This indicates that the appellant did indeed receive the decision and that the application to the Tribunal was validly made.  It follows that the Tribunal had jurisdiction to conduct its review and any complaint in respect of s 66 of the Act cannot be sustained. 

Failure to take evidence into account

14                  It is not clear what relevant evidence the appellant says should have been taken into account.  The Tribunal in its reasons observed that the appellant had advised the Department that he would provide supporting documentation relating to his claims but did not do so.  No supporting material was submitted to the Tribunal.  I specifically raised this matter with the appellant.  He confirmed that he had not sent any further written evidence to the Tribunal. 

15                  If that is the case it is hard to see what evidence was ignored.  The appellant was unable to identify any specific relevant evidence that the Tribunal did not take into account.  The Federal Magistrate dealt with this matter and noted that, to the extent that the appellant was criticising the use made of particular items of country information by the Tribunal, the use of that information, and the weight to be given to it was a matter for the Tribunal (at [15] citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).  Her Honour also found that it had not been established that the Tribunal failed to take into account the material and claims put before it by the appellant (at [16]).  The appellant has not been able to point to any error in relation to those conclusions. 

16                  The Federal Magistrate also considered the appellant’s general complaints that there had been a breach of the rules of natural justice, that the Tribunal had asked a wrong question and that the Tribunal did not take into consideration the appellant's oral evidence (at [13]).  Her Honour found that those complaints were not made out and that no jurisdictional error was established.  Nothing has been put by the appellant to suggest that her Honour's finding was in error. 

17                  Counsel for the Minister submits that the appellant has at no stage asserted that evidence not taken into account related to the question of relocation.  She submits therefore that it cannot be said that a failure to take into account relevant evidence could have affected the outcome of the Tribunal’s decision on relocation.  In the absence of any submission on this or any suggestion in the written submissions that evidence relating to relocation was not taken into account, that submission is accepted. 

Bias

18                  As the Federal Magistrate observed, it is a rare case in which actual bias or a lack of good faith will be established from a review of the Tribunal’s decision alone (at [20]).  There was no evidence before her Honour and there is none before me to support or establish that the Tribunal conducted itself in a way that would amount to actual or apparent bias, or otherwise give rise to a breach of procedural fairness.  There is no evidence to suggest, let alone to establish, that a fair minded lay observer might reasonably have apprehended that the Tribunal member did not bring an impartial and unprejudiced mind to the resolution of the question before the Tribunal.  The ground of bias is not made out. 

The merits of the appellant’s claim

19                  The appellant complains that the Tribunal ignored the merits of his claim.  Merits review of the Tribunal’s decision is not available in this Court.  No jurisdictional error is established on this basis. 

Failure to comply with subss 430(1)(c) and 430(1)(d) of the Act

20                  The alleged failure on the part of the Tribunal to comply with subss 430(1)(c) and 430(1)(d) of the Act does not appear to have been raised before the Federal Magistrate.  It is hard to see, on the facts of this case and in the absence of detailed submission, how it is said that there has been a breach of those subsections.  The ground of appeal has not been substantiated and it must fail. 

Section 424A(1) of the Act and the independent ground

21                  As I have noted, her Honour held that the Tribunal’s finding that it was reasonable for the appellant to relocate within India was made independently of the accepted failure to comply with s 424A(1) of the Act.  The appellant was specifically asked whether he directed any ground of appeal to the finding on relocation or the consequences of that independent finding in light of the failure to comply with s 424A(1).  The only matter that he raised was a question of fact as to the difficulties for him in relocating.  Consistent with MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZEEU at [233], I see no error in her Honour’s approach.

Conclusion

22                 None of the grounds of appeal raised in the notice of appeal or written submissions has been made out.  The appeal should be dismissed with costs.

Associate:

Dated:         17 November 2006

The Appellant appeared in person.