FEDERAL COURT OF AUSTRALIA

SZJZV v Minister for Immigration and Citizenship [2008] FCA 628

SZJZV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2544 of 2007

GILMOUR J

8 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed at $2,900.00.

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 Federal Magistrate Nicholls of 11 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 30 November 2006 and handed down on 19 December 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

Procedural History

2                     The appellant is a citizen of India who arrived in Australia on 2 May 2006.  On 29 May 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 24 June 2006.  On 20 July 2006 the appellant applied to the Tribunal for a review of that decision.

3                     In his protection visa application, the appellant claimed to fear persecution from a criminal gang referred to as “rowdies”, and more specifically from the mastermind of this group, Mr Swami Ji.  The appellant stated that he was living in Chennai when a murder occurred at a local temple in September 2004.  The victim had allegedly become aware of the misuse of certain charitable funds controlled by Mr Swami Ji.

4                     According to the appellant, he became aware of the hideout of the rowdies and passed this information to the police.  He claimed that as a consequence, he received death threats from them and promptly went into hiding. 

5                     At the hearing, the appellant raised the additional claim that in or about 2000 he had fallen in love with a Hindu woman whose father wished to kill him because of his Catholic faith.  The appellant alleged that as a result he had been forced to move residence constantly until his departure from India in 2006.

The Tribunal Decision

6                     The Tribunal found that the appellant was not a credible witness.

7                     The Tribunal did not accept that the appellant had had a relationship with a Hindu woman in 2000.  The Tribunal found that the appellant’s evidence on the subject had changed during the course of the hearing and that he had been unable to explain the omission of this important event in his prior applications.  Nor did it accept that he had been threatened by the woman’s father over a prolonged period, and described his evidence on this matter as scarce and unsubstantiated.

8                     The Tribunal accepted that a Mr Shankara Raman had been murdered at a Chennai temple in September 2004 and that rowdies appeared to be implicated in this killing.  However, it did not accept that the appellant had been involved as a police informer.  It found his evidence to be both contradictory and implausible. 

9                     The Tribunal then considered the position in the event that this finding was wrong and that the appellant had indeed informed the police as he claimed.  It found that the essential and significant reason for any persecution he might suffer would be revenge exacted by the rowdies, which was a criminal matter, and not a reason specified under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.  Moreover, it held that the State would be able to provide appropriate police protection for the appellant.

10                  The Tribunal went on to make a further alternative finding upon an assumption that the appellant had suffered persecution in Tamil Nadu that it would have been reasonable and appropriate for him to relocate elsewhere in India.

Proceedings in the federal magistrates Court

11                  The amended application contained the following grounds:

1.         That the decision of the Refugee Review Tribunal (‘the Tribunal’) was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the applicants’ claims;

2.         The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

Particulars

(a)        The Tribunal did not consider the applicant as a member of a social group comprising those who had given information to police relating to a gang involved in the murder of a prominent religious figure;

(b)        In relation to a. above, the Tribunal did not consider the applicant’s claim that another informant had been abducted by the gang.

(c)        The Tribunal accepted the applicant’s claims that the murder had taken place.

12                  Examining the appellant’s claims, the Federal Magistrate had some reservations over the Tribunal’s application of the “what if I am wrong?” approach articulated in Minister for Immigration v Guo [1997] HCA 22.  Specifically, his Honour questioned the need for the Tribunal to make alternate findings when the Tribunal was otherwise confident that the appellant had not been an informer.  However, his Honour was satisfied that the Tribunal’s finding on the appellant’s experiences in India had been open on the material before it.  A similar finding was made in relation to the Tribunal’s alternate conclusion that any persecution which he might have suffered due to acting as an informant would not have been for a Convention reason.

13                  The appellant set out further complaints in written submissions which, the Federal Magistrate said, appeared to be almost identical to those received in the previous cases of SZJSA v Minister for Immigration and Citizenship [2007] FMCA 1891 and SZKNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1439.  These included allegations of bias; failure to consider the threat to his life and liberty and to consider the impact on his religious background; whether he would suffer serious harm under s 91R(2) of the  Migration Act 1958 (Cth) (“the Act”); failure to properly consider independent country information; the placement of too high a burden of proof on him and failure to give him the “benefit of a doubt”; failure to see that the appellant did satisfy the requirements of the Refugee Convention; lack of procedural fairness; failure to consider further harm if he were to return to India pursuant to s 430 of the Act and failure to comply with s 424A of the Act.  His Honour rejected each ground and held that the Tribunal had not committed jurisdictional error.  

The Present Appeal

14                  The grounds of appeal are as follows:

1.         The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 11 December 2007 failed to find error in law, jurisdictional error, procedural fairness, and relief pursuant to s 39B of the Judiciary Act 1903.

2.         The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

3.         The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.

4.         The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

5.         The RRT emphasised on some irrelevant question at the oral evidence and ignored my political background that put my life in risk.  In doing so the Tribunal may be said to have ignored relevant material, relied in part on irrelevant material and/ or made finding which were erroneous or mistaken.

6.         I strongly believe that there is a lack of procedural fairness in my case as was in the case of ‘Muin’. My case is identical to Muin contenting a want of procedural fairness in two respects.  Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions, which is relevant here.

7.         That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claim.

8.         The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

            Particulars of ground:

a)         The Tribunal did not consider the applicant who ha been under immense and intimidating pressure from Swami Ji ‘rowdies;

b)         In relation to above the Tribunal did not consider the applicant’s claim that ‘rowdies will kill him if he returns to India.

9.         The Tribunal applied the wrong test:

                                    Particulars:

a)         The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

b)         The Tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution.

15                  In his written submissions filed on 17 April 2008, the appellant further raised three additional grounds:

10.       The Tribunal in making its determination failed to record its decision in accordance with section 430 of the Migration Act.

            Particular

                        a)         The Tribunal made no finding as to the extent or nature of persecution                            suffered by the applicant.

                        b)         The Tribunal however found any persecution suffered was not for any                            convention reason but did not give reasons for the finding.

                        c)         Further the Tribunal found that the applicant could seek the protection                           of relevant authorities and relocate in India.

                        d)         The Tribunal failed to record the material factors for the reasons                                                referred to above.

                        e)         The Tribunal in finding that the applicant could relocated in India                                                failed to record whether, having regard to problems complained by                                the applicant in the past and about which the Tribunal finding, it was                          reasonable for the applicant to fear such problem in the future should                                     he relocate to India.

11.       The Tribunal failed to determine the chances of the applicant being persecuted should he return to India.

12.       The Refugee Review Tribunal a failed to act that the applicant satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention.  To go further the Tribunal failed to see that the applicant satisfy the four key elements that are required to satisfy the Convention definition.  The applicant state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.

            The first element – applicant must be outside his country

            The second element – the applicant must fear persecution.  If the applicant return to his country his life his life would be in danger.

            The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.  The applicants fulfil this.

            The fourth element – the fear of persecution for a convention must be a “well founded” fear.  The applicant fulfil all the four elements.

            The Tribunal, which has described these in its decision, have failed to take none of this.  Therefore the applicant submits that the Tribunal failed to analyse the properly the “future harm” the applicant may face if he has to go back to India.

            Hence due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

Grounds 1, 2, 4, 7, 8

16                  These contend that errors of various kinds were made by the court below.  They are meaningless in the absence of particulars.  No such errors are discernible upon a consideration of the reasons and conclusion of the Federal Magistrate.

Ground 3

17                  The appellant claims that the Tribunal did not apply the principles in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.  More recently the High court considered the same matter in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660.  These cases require the Tribunal to consider whether it would be reasonable for the appellant to relocate to another part of the country.  

18                  The Tribunal’s primary finding was that the appellant had not demonstrated to its satisfaction that he had faced past persecution for his religion, political opinion or any other convention ground and as a result was of the opinion that the appellant did not face a real chance of persecution in the reasonably foreseeable future for any Convention reason.  The Tribunal then considered the issue of relocation but only upon the assumption that its primary finding was wrong.  Relevantly, the appellant was a young single man with a good education in India, as well as work experience in Australia.  He held the degree of Bachelor of Commerce.  He was able to speak, read and write in both English and Tamil and would have no difficulty communicating in parts of India where English is spoken.  The Tribunal also considered country information concerning India.  The Tribunal was not satisfied that the appellant would encounter any difficulty in the reasonably foreseeable future for reasons of his political opinion or religion or any other Convention based reason if he moved to another part of India such as Mumbai or New Dheli.  It was satisfied that there are Christian communities all over India and that Christians are able to relocate to other parts of the country.

Ground 5

19                  The appellant complains that the Tribunal considered irrelevant oral evidence and ignored the appellant’s political background.  This ground of appeal is also not particularised.  No such error is apparent from the reasons or conclusions of the Tribunal.  It was not a ground articulated before the Federal Magistrate. 

Ground 6

20                  The appellant contends that this case is identical to the case of Muin v Refugee Review Tribunal (2002) 190 ALR 601.  As the Federal Magistrate correctly set out at [51]-[52] there was no factual basis for such a submission.  

Ground 8

21                  This contends that the Tribunal did not consider the appellant’s claim to fear harm from rowdies.  It is self-evident from the Tribunal’s extensive reasons that this is not the case.  The Tribunal found that he was not a police informant and accordingly was not at risk of harm from rowdies.  The Tribunal further considered that if its decision was wrong and he was an informant, the essential and significant reason for any claimed persecution from the rowdies would be for revenge: a criminal matter, and not a Convention reason. 

Ground 9

22                  The appellant claims that the Tribunal imposed on him an onus of proof which was too high and failed to look at his claims as a whole.  This ground is unparticularised.  The first limb is without merit.  The Tribunal simply did not believe the appellant.  It is for the appellant to establish its case before the Tribunal: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  It explicitly stated that it had examined the appellant’s claims as a whole.  His Honour’s reasons at [38]-[48] comprehensively address these complaints.  He was correct to reject them.   

Ground 10

23                  The appellant contends that the Tribunal failed to comply with s 430 of the Act.  However, that section only requires the Tribunal to record findings that it has made, not that it must make a finding on every question of fact which the Court may consider material on a review of the Tribunal’s decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68-69] per McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing at [1], [9-10]; [32-34] per Gaudron J; [217] per Callinan J; contra Kirby J at [136-138].  The Tribunal gave reasons for its findings.  The appellant’s disagreement with those reasons does not establish any breach of s 430.

Ground 11

24                  This is a complaint that the Tribunal did not determine whether the appellant had a well-founded fear of harm in India.  It is wholly without merit.  The Tribunal in fact found that no such fear had been demonstrated.  

Ground 12

25                  This ground in effect seek a merits review, which is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

26                  Each of the appellant’s grounds is without merit.  The appeal should be dismissed and the appellant should pay the first respondent’s costs.

Associate:

Dated:             8 May 2008