FEDERAL COURT OF AUSTRALIA

SZLQG v Minister for Immigration & Citizenship [2008] FCA 1158

SZLQG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 803 of 2008

SUNDBERG J

8 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of India who arrived in Australia on 19 April 2007. On 17 May 2007 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. The appellant provided a statement in support of his application in which he said he feared persecution because of his Muslim beliefs and his involvement with the Manitha Neethi Paasariai (MNP). He claimed he was targeted by “Hindu extremist activity groups” such as Rashtraiya Swayamsevak Sangh (RSS) and the Bharathiya Janatha Party (BJP). A delegate of the first respondent refused the application. That refusal was affirmed by the Refugee Review Tribunal. The appellant applied to the Magistrates Court for review of the Tribunal’s decision. He contended that the Tribunal committed jurisdictional error by failing to take into account ‘integers’ central to his case, amongst other broad and poorly particularised claims. The Federal Magistrate identified eight overlapping grounds of complaint, none of which, she held, was made out. Her Honour found no jurisdictional error and dismissed the appellant’s claims largely on the basis of the Tribunal’s credibility findings and the implausibility of his evidence.

GROUNDS OF APPEAL

2                     There are three grounds:

[1]        The [Magistrate] … failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.

[2]        The Tribunal did not give the applicant before the hearing the information that it had about the history of the MNP and it did not give the applicant the country information it had about India. The Tribunal used the information while making the decision. This was against section 424A of the Migration Act 1958.

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

The second ground is directed at the Tribunal. This Court can only address error on the Magistrate’s part. I will proceed on the basis that the appellant alleges that the Federal Magistrate erred in finding that the Tribunal had not contravened s 424A.

CONSIDERATION

3                     The first ground is not particularised. It seems to repeat what was put to the Federal Magistrate. The ground is broad and in the absence of particulars, it is difficult to discern what the complaint is. The Magistrate viewed the ground as going to the merits of the Tribunal’s decision, and amounting to no more than the appellant’s disagreement with the findings made against him. At pars [25]‑[27], her Honour said:

25.       A fair reading of the Tribunal’s decision makes clear that the Tribunal rejected comprehensively the Applicant’s claims, including his claim of being attacked and being forced to live in hiding. The Tribunal had regard to country information which it identified and which disclosed that Muslims do not suffer harm amounting to persecution in Tamil Nadu where the Applicant lived.

26.       In light of the comprehensive rejection of the Applicant’s evidence and claims of persecution, there was no obligation on the Tribunal to consider the issue of relocation and it did not do so (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265). 

27.       The Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.  I accept the submission of counsel for the First Respondent that “The basis of the RRT’s decision was that the Applicant lacked credibility and that his claims were implausible”. The Tribunal’s adverse credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

4                     The Tribunal did not accept the appellant’s evidence and preferred the country information which was before it. This is made clear at page 13 where the Tribunal said that while the MNP had been accused of extremism, the country information before him did “not support the accusation”. Further, on the same page, the Tribunal Member said:

In these circumstances, the applicant’s claims are implausible. The applicant claimed that he was attacked by militants of the BJP and the RSS. However, these organisations are extremely weak in Tamil Nadu ….

…

Even less do I accept that the applicant has such a profile that people who may engage in such conduct would go looking for the applicant outside his home area. I do not accept, therefore, that the applicant lived in Chennai in hiding.

5                     These findings were determinative of the decision against the appellant. Based on them, the Tribunal did not accept that the appellant had suffered harm amounting to persecution, or that a real chance of persecution would exist if he returned to India. The findings were clearly open to the Tribunal, and review of them invites a merits investigation that this Court cannot undertake. The Magistrate correctly so held. See, Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1985) 162 CLR 24 at 41 and A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56 at [8]. The first ground is not made out.

6                     The foregoing paragraphs also reveal how her Honour dealt with the claim that there was error in the application of the Full Court’s decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 (‘Randhawa’). As she said at [26] of the passage quoted at [3], no occasion arose to consider relocation. In order for that to be a live issue, the appellant must be found to have a well‑founded fear of persecution in his country of nationality. That was not made out, for want of reliable evidence. This ground of appeal is without substance.

7                     The final ground relates to s 424A of the Act which provides in part:

(1)               Subject to subsections (2A) and (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)        invite the applicant to comment on or respond to it.

…

(3)       This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

8                     Before the Federal Magistrate the appellant claimed that the Tribunal should have given him particulars of the “[i]ndependent information” and “[i]ndependent evidence” to which it had regard. At [61]‑[62], her Honour held that reliance on s 424A was misconceived. The information fell squarely within the exception in s 424A(3)(a).

9                     The verbiage of the present ground of appeal differs somewhat from that propounded before the Magistrate. The appellant says that the Tribunal did not give him information that it had about the history of the MNP or country information it had about India. The ground is not made out. Information regarding the history of the MNP is covered by the exception in s 424A(3)(a) as information about a class of persons of which the appellant is a member, namely the MNP. See the recent observations of the Full Court in Minister for Immigration v SZHXF [2008] 245 ALR 703 at [18]‑[20].

10                  The same applies to the unparticularised country information about India. The Tribunal set out the country information upon which it relied. It is clear that it is not information specifically about the appellant, and accordingly falls within s 424A(3)(a). In any event, it appears from pages 5 and 6 of the Tribunal’s reasons that the appellant’s attention was drawn to the country information during oral evidence, including information on the political situation in Tamil Nadu. There was no failure to comply with the requirements of s 424A(1) of the Act. This ground is not made out.

Conclusion

11                  None of the grounds of appeal has been established, and the appeal must be dismissed.

Associate:

Dated:         8 August 2008