FEDERAL COURT OF AUSTRALIA

SZKCI v Minister for Immigration & Citizenship [2007] FCA 1291

SZKCI AND SZKCJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 954 OF 2007

MIDDLETON  J

8 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent.

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 a judgment of a federal magistrate of 17 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 4 December 2006.

2                     The appellants, who are husband and wife and citizens of India, arrived in Australia on 25 February 2006.  The appellants applied for a protection visa which was refused on 30 June 2006 by a delegate of the first respondent.  Only the appellant husband (to who I will refer as ‘the appellant’) made claims under the Convention with the appellant’s wife relying on membership of the appellant’s family unit.

3                     The appellant’s infant son had also been included on the application for a protection visa.  However, in June 2006, the appellant withdrew his son from the application as he had been sent back to India with a family friend as he missed his grandmother.

THE APPELLANT’S CLAIMS

4                     In his application, the appellant claimed to be a Hindu and to have been a member of “Hari Geeta Bhavan Mandir” Temple where he had participated in charity work since 1999.  The appellant claimed that difficulties arose with nearby Muslims who wanted to use the Temple’s property.  The appellant claimed Muslim youths attacked him while he was working at the Temple and he retaliated, seriously injuring one of the boys.  The appellant claimed that he came under attack by the father of the injured boy.  The appellant claimed that when he reported this to the police he did not receive any assistance.  The appellant claimed that the police harassed him and his attempts to settle the matter with money were futile.  The appellant claimed that he attempted relocation on various occasions, but ultimately departed India and went to New Zealand.  However, the government there was not supportive or co-operative and so he brought his family to Australia.

5                     In its decision the Tribunal noted that the claims made by the appellant differed between written evidence provided in support of the application for a protection visa and oral evidence given at hearing.  However the Tribunal stated that it did not rely upon these inconsistencies in its decision. 

6                     The Tribunal found the appellant was not a credible witness, with many aspects of his oral evidence described as implausible, internally inconsistent and lacking credibility.  No further information was provided to the Tribunal about the injury to the young boy and the appellant could not provide an adequate response to the concerns of the Tribunal about the lack of evidence.  The Tribunal noted the appellant was unaware of the injuries of the young boy and found it implausible that the appellant would not be able to provide information about the injuries of the boy, particularly as this was the cause of his fear.  Further, the Tribunal considered that the appellant sending his infant son back to live in the area in which he perceived risk, as outlined in evidence at hearing, showed a lack of subjective fear. 

7                     The Tribunal did not accept that the appellant suffered serious injuries or continued to suffer from those injuries.  No medical evidence was provided and the Tribunal found it to be implausible that the appellant, as a person who was well-educated and well-travelled, did not seek medical assistance.

8                     The Tribunal doubted that the boy’s father had any influence over the police noting that independent evidence indicated that Muslims in Mumbai do not have a good relationship with police.  

9                     The Tribunal noted that the appellant did not have trouble obtaining valid travel documents from the authorities.

10                  The Tribunal found the appellant did not have a well-founded fear.  The Tribunal found that the incident as claimed did not take place, nor did any of the claims which followed from the incident.  The Tribunal did not accept the appellant faced a real chance of persecution if he was to return to India.  The Tribunal took into account independent country information which indicated that Hindus do not suffer harm in Mumbai but rather it is Muslims who are subject to adverse attention of authorities.

THE DECISION OF THE FEDERAL MAGISTRATE

11                  In January 2007 the appellant sought judicial review in the Federal Magistrates Court.  Before the federal magistrate the appellant relied upon an amended application raising one ground:

1.      The Refugee Review Tribunal (the Tribunal) made a jurisdictional error when the (sic) it rejected the applicant’s claim.

Particulars:

(i)        The Tribunal mentioned that it doubts that the boys father had any influence over the police if there had not been an arrest but the Tribunal mentioned that the police of Mumbai did not have good relationship with the police but the Tribunal did not ask any information regarding this observation and how it thought that arrest can remove its doubt this a wrong observation of the Tribunal.  (CB-193, 5^th paragraph).

(ii)               The Tribunal mentioned that the applicant and his wife had no trouble getting valid travel document to leave India so they did not have any trouble there in India but the Tribunal did not ask right question regarding the valid travel document and did not give an opportunity to explain this issue.  Otherwise the applicant would have given a appropriate explanation of this issue.

(iii)             The Tribunal wrongly observed that it did not accept that the applicant suffered injury because not going to the hospital but the Tribunal should know there are many ways to treat an injury one should not have to go hospital all the time there are alternate option on the basis of the circumstances (CB-194).

(iv)             The Tribunal wrongly observed that sending back applicant’s son to live overseas shows that they did not have fear but the Tribunal did not give them an opportunity to properly explain why they have sent their son overseas and the Tribunal also did not give reason why it found that the incident of the 8 October 2005 did not took place.  (CB-194)

(v)               The Tribunal did not comply with the requirements s. 424A of the Migration Act 1958 it did not give the information to applicant for comment required by this section.  The applicant also did not understand why their claim was rejected.

(vi)             The Tribunal mentioned that the police are not fair and impartial so there is always persecution and discriminations and there is always possible to persecute the people by the authorities (CB-194).

12                  Her Honour considered the particulars in the application and ultimately determined there was no apparent jurisdictional error in the decision of the Tribunal.  Particular (i) was interpreted as a complaint that independent country information was not provided to the appellant, a complaint rejected on the basis of s 424A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’).  Her Honour outlined that the finding in respect of the allegation that the son’s father had influence over the police was open to the Tribunal on the evidence before it and for which it gave reasons.  The appellant’s disagreement with the conclusion was asserted to be an attempt at impermissible merits review.

13                  Particular (ii) was rejected, as information about the passports was information given to the Tribunal by the appellant and, as such, was excluded from the requirement under s 424A(1) by s 424A(3)(b) of the Act.  Further, and in any event, the information from the passports formed part of the reasoning process leading to adverse credibility findings and were not required to be disclosed to the appellant.

14                  Particular (iii) was rejected as it constituted disagreement with the factual findings of the Tribunal about the appellant’s injuries.  Again, her Honour noted that the findings of the Tribunal were open to it on the evidence and this was an attempt at impermissible merits review.

15                  Particular (iv) was rejected as the Tribunal did give the appellant an opportunity to explain why he sent his son back to India.  The finding that the conduct demonstrated a lack of subjective fear was open to the Tribunal on the evidence and material before it and for which it provided reasons.  

16                  Particular (v) was rejected as her Honour found no breach of s 424A was evidenced in the decision of the Tribunal.  

17                  Particular (vi) was found to be no more than a statement that was not capable of demonstrating jurisdictional error.

GROUNDS OF APPEAL

18                  By notice of appeal filed on 30 May 2007 in this Court the appellant raised two grounds of review: the federal magistrate erred in considering whether the Tribunal made a jurisdictional error when it assessed the claims of the appellant; and the federal magistrate erred in failing to find that the Tribunal did not comply with the obligation under s 424A of the Act.

19                  However, the appellant also provided written submissions in apparent amplification and particularisation of the two grounds of review, and relied upon the following grounds (which I have summarised), many of which were agitated before the federal magistrate:

1.         It was not enough for the Tribunal to give adverse information to the appellant at the time of the Tribunal hearing – the adverse information which was the reason or part of the reason for denying the appellant a protection visa should have been given in writing to him.

2.         The Tribunal should have given the appellant the opportunity to respond to the Tribunal’s doubts about the influence of the injured boy’s father.  The Tribunal’s findings in this regard were not open to it. 

3.         The Tribunal should have given the appellant the opportunity to explain the issue of obtaining valid travel documents.  It did not ask the right questions and the Tribunal’s findings in this regard were not open to it. 

4.         The Tribunal made a jurisdictional error when it did not accept the appellant suffered serious injuries and continued to suffer from those injuries only because the appellant did not attend a hospital.

5.         The Tribunal wrongly found that sending back the appellant’s son overseas to live meant the appellant did not have any fear in India.

6.         The Tribunal used very old country information which did not show the actual picture and information.

7.         The federal magistrate wrongly observed that the Tribunal had no obligation under s 424A of the Act.  The Tribunal’s decision was not fair and just and involved a failure to comply with the law and the decisions of a higher court.

8.         The Tribunal did not follow the rule in the decisions of SAAP the Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.

CONSIDERATION

Ground 1

20                  To the extent that complaint is made about independent information considered by the Tribunal, there is no indication that there has been any breach of s 424A of the Act.  If the complaint is that the Tribunal did not provide written notice of its reasons prior to their final publication, the Tribunal is not required to give advanced notice of its reasoning process.  Ground 1 has no substance.

Ground 2

21                  The Tribunal provided ample opportunity to the appellant to give any explanation required.  The Tribunal’s findings in respect of that allegation were open on the evidence and material before it and for which it gave reasons.  Otherwise, the appellant’s disagreement with the Tribunal’s reasoning and conclusion does no more than seek merits review which this Court cannot undertake: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  Ground 2 has no substance.

Ground 3

22                  Similarly in respect of ground 3, the Tribunal provided ample opportunity to the appellant to make any explanation required.  I adopt the conclusions of the learned federal magistrate, where she said at [29] to [32] of her reasons as follows:

The information contained in the applicants’ passports was information given by the applicants to the Tribunal for the purposes of its review, as disclosed in the Tribunal’s decision and confirmed in the Tribunal hearing record.  In the circumstances that information is excluded from the obligations of s 424A(1) of the Act by reason of s 424A(3)(b) of the Act.

Further, the Tribunal noted, in the Claims and Evidence section of its decision, an exchange between it and the first named Applicant about the first named Applicant’s frequent travel.

In any event, the Tribunal’s reasoning process in respect of evidence before it is not a matter required to be put to the applicants by the Tribunal.

In the circumstances, the Tribunal’s finding that the applicants had no trouble in obtaining documents and were free to come and go from India and other countries was a finding open to it on the evidence and material before it and was evidence upon which it was entitled to rely as part of its reason process in making adverse credibility findings in respect of the first named Applicant.

In my view Ground 3 has no substance.

Ground 4

23                  Similarly, ground 4 involves an attempt at impermissible merits review.  The federal magistrate dealt with that issue correctly at [35] to [37] where she said:

In its decision, the Tribunal refers to the first named Applicant’s claims of serious injury and notes that it asked the first named Applicant if he went to hospital and noted his negative response.  The Tribunal found it implausible that the first named Applicant, being well educated, well travelled and with the means to run a successful business, did not seek medical attention for serious injuries he suffered.

Accordingly, the Tribunal did not accept that the first named Applicant suffered serious injuries.  That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

The disagreement with that finding by the applicants does not demonstrate any jurisdictional error on the finding made by the Tribunal.  [That ground] otherwise seeks merits review of the applicants’ claims in this regard.  As referred to above in these Reasons, this Court cannot undertake that exercise.

Ground 4 has no substance. 

Ground 5

24                  Similarly, ground 5 is an attempt to review the merits of the Tribunal’s findings.  I again adopt the reasons of the federal magistrate who dealt with this issue correctly at [39] to [41] where she said:

[This ground] complains that the Tribunal did not give the applicants an opportunity to properly explain why they sent their son back to Mumbai. However, in the Claims and Evidence section of its decision, the Tribunal identified its exchange with the applicants about sending their son back to Mumbai and noted the applicants’ response.  That exchange is as follows:

“The Tribunal asked “Were you concerned about sending your son back to where the danger is?”

The applicant replied “Yes but there are more problems here (Australia), more concerns about safety at night here, he is happy and safe there.”  The Tribunal again noted that the son is being sent back to the area where the assault happened.  The applicant again reiterated that he was not concerned about his infant son’s welfare.”

That exchange, as recorded by the Tribunal in its decision, makes it clear that the applicants did have an opportunity to explain to the Tribunal why they sent their son to Mumbai.  In the circumstances, the finding of the Tribunal that such conduct showed a lack of subjective fear was open to it on the evidence and material before it and for which it provided reasons.

Ground 5 has no substance.

Ground 6

25                  No particulars were provided to me as to the very old country information or the correct position as contended for by the appellant.  This was not a matter argued before the federal magistrate.  In my view, the appellant had ample opportunity to put the position as contended by him before the Tribunal and in any event the Tribunal was entitled to rely upon the country information it had before it: see SZDZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1782 at [22] to [23]; SZIJK v Minister for Immigration and Citizenship [2007] FCA 141 at [10].  In my view, this ground has not been demonstrated to have any substance. 

Grounds 7 and 8

26                  These grounds can be considered together.  I can discern no failure to comply with the law or the decisions referred to, or any decisions of a “higher court” that I am aware.  The Federal Magistrates Court correctly applied s 424A on the basis of the particulars of information sought to enliven the obligation of s 424A of the Act.  Any information relied upon by the Tribunal is information given to the Tribunal for the purpose of review within s 424A(3)(b) of the Act or information not about the appellant in particular but about a class of persons of which the appellant was a member, within s 424A(3)(a).  In my view, Grounds 7 and 8 have no substance. 

27                  For the reasons above, I would dismiss the appeal.

Associate:

Dated:         8 August 2007