FEDERAL COURT OF AUSTRALIA

SZLXU v Minister for Immigration and Citizenship [2008] FCA 1238

SZLXU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 744 of 2008

STONE J

26 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                     This is an appeal from orders made by Federal Magistrate Scarlett on 5 May 2008.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 3 January 2008.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of India who arrived in Australia on 7 March 2007 from Oman.  He claimed to fear persecution in India on the basis of his Muslim religion.  He stated that whilst a student he was an active worker in the Muslim Students Federation (MSF), and that after graduation he became a member of the Indian Union Muslim League (IUML).  He claimed that he regularly faced threats from “Hindu terrorists” who opposed these groups. 

3                     In particular, the appellant claimed to have been charged with assault in 1997 during communal clashes and, in support, provided a First Instance Report (FIR) from the Kerala police.  These clashes were occasioned by an incident in which the appellant and others allegedly confronted a Hindu boy who had taken a Muslim girl to a cinema.  He stated that Hindus subsequently attacked his local mosque. 

4                              The appellant said that he left India for Oman in 2001, briefly returning to India in 2003.  He stated that he returned to Oman in 2004 because of ongoing communal problems in India.  In 2006 he again returned to India but went back to Oman in that same year because of popular anti-Muslim sentiment.  He claimed to have sustained injuries during a political clash whilst in India in 2006 and to have been admitted to hospital.

THE TRIBUNAL DECISION

5                     The Tribunal accepted that the appellant was a Muslim and that he had a past association with the IUML and MSF.  The Tribunal independently verified and confirmed the appellant’s claim of charges arising out of an incident in 1997.  It found, however, that the appellant was part of the group that initiated the attack and, contrary to his assertions, the charges were not ongoing but dismissed within a matter of weeks.  In these circumstances the Tribunal did not consider the charges were an abuse of process by the police or that they amounted to persecution.

6                     Before the Tribunal, the appellant also claimed that the Bharatiya Janata Party (BJP) was systematically destroying Muslim crops and causing other damage to Muslim property, especially during the month of Ramadan.  He also claimed that the BJP and the RSS (a related extremist organisation) had compiled a list of “wanted people” and would locate and kill him because of his activities with the MSF and the incident in 1997 if he was returned to India.

7                     During the course of the hearing the Tribunal asked the appellant about the incident that occurred in 2006 and whether he had reported this to the police.  The appellant said that he had reported it to the police but had not obtained a record of the report because he had returned to Oman.  The appellant offered to obtain a copy of the police report and the Tribunal agreed to allow him three weeks in which to submit it.  The Tribunal noted that a family member should be able to obtain it for him within a few days and send it to him from Kerala. The Tribunal also told the appellant that “the sooner the document arrived, the more confident the Tribunal could be that it was a genuine document and not one fabricated for the purpose of supporting his case.”  On 30 October 2007, the appellant wrote to the Tribunal requesting a further three week extension to provide the police report.  On 31 October 2007 the Tribunal refused the extension and asked “the applicant to submit evidence of the efforts he had made to obtain the documents concerned”. 

8                     The Tribunal noted that on 4 November 2007 the appellant provided what purported to be “a copy of the FIR”.  On 8 November 2007 he provided the original of this document in relation to which the Tribunal commented:

It is typed on what seems to be a portion of what was a larger piece of green paper, approx 214 mm wide and 173 mm long.  The paper bears no letterhead.  The Stamp impression reads “SUB INSPECTOR OF POLICE KUTHUPARAMBA STATION” and has a space for the date to be written in, though the date was not filled in that space, but was written elsewhere.

9                     The Tribunal noted that the appellant had supported his claim to have been attacked in 2006 with three documents: a medical certificate, a copy of a newspaper article and the police document referred to above.  The medical certificate did not indicate the cause of the injury and was given little weight.  The Tribunal had received information from the Department of Foreign Affairs and Trade that the specific newspaper article had been forged, and it found that this fact undermined the appellant’s credibility.  Moreover, the police document was not in the form of an FIR, which the Tribunal would have expected it to be if the incident had occurred.  The appellant did not mention these documents in his protection visa application and this raised further doubts about the genuineness of the documents.  In light of these findings, the Tribunal did not accept the appellant’s claim that he had been attacked in 2006.

10                  In summary, the Tribunal found that the one incident which it did accept had occurred had taken place some ten years previously and had been swiftly resolved.  It further found that the appellant would be able to rely on an appropriate level of protection from the Indian authorities.  In view of the appellant’s language and vocational skills, and the fact that any difficulties he did face were confined to the immediate vicinity of his home village, the Tribunal concluded that, even if there were any real risk of harm in his local district, it would be reasonable for the appellant to relocate within India.  The fact that the appellant returned to India after he had obtained a visa for entry into Australia led it to conclude the appellant had no genuine fear of persecution in India.   In light of these findings, it declined to disturb the delegate’s decision.

THE DECISION OF THE FEDERAL MAGISTRATE

11                  Before the Federal Magistrate the appellant relied on an amended application filed on 2 April 2008.  This application advanced eight grounds alleging, inter alia, that the Tribunal had erred in rejecting the authenticity of the medical certificate, newspaper articles and police document provided by the appellant, and had failed to accord the appellant natural justice.  The appellant also stated that he was willing to provide further material in support of his protection visa claim if required.

12                  The Federal Magistrate found that these grounds challenged the factual findings of the Tribunal, noting that it is not permissible for the Federal Magistrates Court to conduct merits review of the Tribunal’s decision; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 at 420.  His Honour found that the Tribunal’s findings in relation to the evidence were generally open to it, and that it was “difficult to see” how the Tribunal had not afforded the appellant natural justice.  To the extent that one of the grounds of review contained an allegation of bias (which his Honour did not accept), there was no evidence of bias in the sense discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507.  His Honour concluded by stating that at [34] that:

The applicant's eight grounds of review do not establish any jurisdictional error. I have read through the Tribunal decision independently of the applicant's claims and of the Minister's submissions and I am unable to discern any jurisdictional error.

THE PRESENT APPEAL

13                  The notice of appeal in this Court raises three grounds of appeal, which in summary are that:

1.                  The Federal Magistrate failed to find error of law, jurisdictional error, procedural fairness and to grant relief;

2.                  The Federal Magistrate dismissed the case without considering the legal and factual errors in the Tribunal’s decision; and

3.                  The Federal Magistrate failed to apply the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

14                  At the hearing of the appeal the appellant did not make any submissions in support of these grounds.  In the absence of any particulars I accept the first respondent’s submission that the first two grounds are so general as to be meaningless.  The issue involving the principles in Randhawa referred to in the third ground of appeal was not raised before the Federal Magistrate.  In any case, it is clear that where the Tribunal finds there is no well-founded fear of persecution, no question of relocation arises. 

15                  In “written submissions” filed on 28 July 2008 the appellant sought to raise grounds of appeal additional to those in the notice of appeal.  He alleged:

1.        The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.

2.      The decision of the second respondent was effected [sic] by jurisdiction error in that the second respondent failed to consider the applicant’s claim that he feared persecution on the basis of his membership with Indian Union Muslim League (IUML).

3.      The Tribunal erred in law amounting to jurisdictional error in finding that I do not have a well-funded [sic] fear of persecution and I do not satisfy the criterion set out in s.36(2)(a) for a protection visa.

4.      The Tribunal member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials.

5.      My appeal is that The Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take in to account relevant consideration of my well founded fear of persecution for being a member of Indian Union Muslim League. The Tribunal accepted I am a Muslim and I had a past association with the IUML and the MSF, but has failed to take into account the well-founded fear of my persecution I experienced prior to departure from India.

16                  These additional grounds of appeal must be rejected. The Federal Magistrate’s detailed reasons show that his Honour comprehensively reviewed the Tribunal’s decision, which was open to it on the evidence.  It is clear that the grounds of appeal raised by the appellant must fail.

17                  I wish to comment on an aspect of the Tribunal’s decision that was not raised either in the judgment of the Federal Magistrate or in the appellant’s grounds of appeal.  It concerns s 424AA of the Migration Act 1958 (Cth) and was drawn to my attention by the first respondent’s written submissions.  The first respondent submitted that when the Tribunal put to the appellant that all the charges made in respect of the incident on 18 July 1997 were dismissed within six weeks, the Tribunal was proceeding under s 424AA of the Act.  It was submitted that the Tribunal had complied with the section as it was interpreted in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] where Marshall J said:

That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the bill which introduced s 424AA where the following was said:

New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT’s existing obligation under section 424A, in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA, it is not required to give the particulars under section 424A.

18                  I accept the first respondent’s submission.  There was no jurisdictional error in the Tribunal's dealing with this issue. 

19                  The first respondent also made a submission in relation to the enquiries made by the Tribunal to Department of Foreign Affairs and Trade.  The first respondent noted that this issue had not been raised before the Federal Magistrate and hence the enquiries and the responses received had not been included in the Appeal Book.  Similarly, no such issue has been raised in this appeal.  In circumstances where the material is not before me and no issue has been raised either here or in the court below it is not appropriate, in my view, for the Court to examine the issue. 

20                  The appeal must be dismissed with costs. 

Associate:

Dated:              26 August 2008