FEDERAL COURT OF AUSTRALIA

SZMBA v Minister for Immigration and Citizenship [2008] FCA 1331

SZMBA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1011 OF 2008

GILMOUR J

29 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondents costs to be taxed if not agreed.

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 23 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 21 February 2008.  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 30 July 2007.  On 10 September 2007 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 October.  On 14 November 2007 the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal the appellant claimed to fear persecution in India due to his political opinion and religion.  What follows is a summary of the claims made by the appellant in support of his application.  He formed a committee, along with other people, for the distribution of disaster relief in Tamil Nadu after the 2004 tsunami. 

4                     He came into conflict with Mr Karupanaithy (“K”), a member of the Bharatiya Janata Party (BJP) and leader of the committee.  K gave preference to Hindus in distributing aid and neglected the affected Muslims and Christians.  The police were unwilling to intervene in this situation as they were working in conjunction with K.  A friend of the appellant called George was appointed as leader to organise a protest against K.  George then went missing and he was appointed as leader in his place.  

5                     He was later harassed by “rowdies” acting on K’s orders after they discovered that he would be leading the protest.  When he discovered that K had ordered George to be kidnapped and murdered he refused to lead the protest.

6                     On one occasion he was attacked by K’s men while returning home from a wedding.  He was cut on his left hand and his two-wheeler was set on fire.  He suffered burns and bleeding on his right leg and was only left alone when a bus drove along the side of the road.

7                     There was also an attempt to kidnap his daughter but she was saved by her teacher.

8                     The Tamil Nadu Towheed Jamaath organised meetings and a procession in which he allegedly took part to support the reservation of government seats for Muslims.  He was again attacked mercilessly by K’s men.

9                     He flew to Bangkok in Thailand in March 2006 and took a job for 10 months.  He believed he would not have any difficulty visiting India so he returned for a short time in February 2007.  During that time he and his wife were attacked while coming home from the cinema.  He then returned to Bangkok after this incident but again travelled to India when his wife was recovering from an abortion in a nursing home.  On 15 July 2007 he returned to Bangkok.  In July 2007 he telephoned his family but nobody answered the call.  He now does not know where his family is.  He then decided to come to Australia.

THE TRIBUNAL DECISION

10                  The Tribunal did not accept the appellant’s claims that he had been harmed or was in fear of being harmed.  It found that the appellant completely lacked credibility.  The Tribunal stated that the appellant’s evidence was vague and often unresponsive.  It found significant inconsistencies in his oral evidence and written claims.

11                  The Tribunal went on to identify some specific areas of concern.  These included the appellant’s evasive responses in relation to the tsunami committee; his initial omission of a claim that members of the committee were assaulted in February 2005; inconsistencies in relation to dates; and the implausibility of a claim that he had continued to seek contact with K at a time that he also claimed to be in hiding from him out of fear of being assaulted.

12                  The Tribunal acknowledged that the appellant had adduced evidence of medical treatment undertaken by his wife and had pointed to injuries to himself (a burn mark and a knife wound).  However, the Tribunal did not accept that these by themselves were corroborative of his claim to have been assaulted due to his committee membership.  It further found that it was unable to verify the authenticity of an alleged witness statement provided from India and therefore gave it no weight.

13                  The Tribunal also noted that the appellant’s return to his home area from overseas on at least one occasion appeared inconsistent with his holding a genuine fear of persecution.

14                  The Tribunal was prepared to accept that the appellant had been involved in a disaster relief committee in Tamil Nadu.  However, it did not accept that the appellant had been persecuted for this reason or that the claimed series of incidents of harm had occurred.  As such, it was not satisfied that the appellant held a well-founded fear of persecution for a Convention reason in India.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

15                  The appellant claimed in his original application before the Federal Magistrate that:

1.         The decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims; because I was being questioned without a break and felt stressed and intimidated.

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

            Particular of Grounds

a)         The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Mr K and Hindu extremist party BJP.

b)         In relation to above the Tribunal did not consider the applicant’s claim that he was targeted by K’s men and attacked mercilessly.

c)         Therefore the applicant submits that the Tribunal failed to analyse properly future harm the applicant’s may face if he return 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.

3.         The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

4.         The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.

16                  In the amended application the appellant further claimed that the Tribunal:

1.         The Tribunal applied the wrong test:

a)         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 too high an onus of proof on the applicant’s and failed to give the applicant the benefit of the doubt.

2.                  The second respondent 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 that any persecution suffered was not for any Convention reason but did not give reasons for the finding.

c)         The Tribunal failed to record the material facts for the reasons referred to above.

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

4.         The Tribunal member did not use the country information while making the decision.

5.         The second respondent denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

6.         Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.

7.         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 claim.

17                  The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that there was no evidence pointing to a failure to consider a particular integer.  The Federal Magistrate found no evidence to support the appellant’s claim that he was unable to present his evidence as a result of being questioned without a break, or feeling stressed and intimidated.  Rather his Honour concluded that the appellant was given more than ample opportunity to put forward his claims. 

18                  The Federal Magistrate found that the remainder of the grounds in the original application variously sought an impermissible merits review, or were unparticularised or unintelligible.

19                  In relation to the amended application, the Federal Magistrate found no evidence of a failure to apply the “real chance” test.  His Honour stated that the Tribunal was entitled to dismiss the application for review unless satisfied that the appellant satisfied the Convention definition of refugee and that in the absence of doubts over its findings, it was not required to give the appellant the benefit of the doubt: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.  The Federal Magistrate found that the Tribunal did not require “independent evidence of fact” and thereby require the appellant to satisfy an onus of proof.  Its credibility finding allowed it to reject the witness statement from India.

20                  The Federal Magistrate held that the Tribunal made clear and sufficient findings, which addressed the appellant’s claims, but rejected those claims setting out its reasons for doing so.  In this regard there was no breach of s 430 of the Migration Act 1958 (Cth) (“the Act”).  His Honour was satisfied that the Tribunal had addressed the chance of the appellant being persecuted in the future, and had found that no real chance existed.  His Honour also stated that the Tribunal was not obliged to research general country information if it felt it could assess the appellant’s history based on its inherent merits.  Finally the Federal Magistrate concluded that there was no denial of procedural fairness by the Tribunal, who was very thorough in discussing all of the known issues with the appellant.

THE PRESENT APPEAL

21                  The notice of appeal raised the following grounds:

1.         The single Judge of the Federal Magistrate Court in his Honours judgement delivered on 23 June 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act.

2.         His Honours (sic) and Tribunal breached section 424A(1) of the Act in failing to provide the applicant to comment on information specific to the applicant’s claim.

(Transcribed from the original without alteration or amendment)

22                  The appellant filed an affidavit made on oath on the 5 August 2008.  Its reception was not opposed.  It raises six complaints:  

1.         Delay in delivering the decision.

2.         There was no evidence or other material to justify the making of the decisions by the Tribunal.

3.                  The Tribunal failed to take independent country information into account. 

4.                  The Tribunal failed to make findings on all of the appellant’s claims.

5.                  Relocation of the appellant within India including the State of Tamil Nadu can only worsen his situation.  

6.                  The Tribunal misinterpreted the law relating to the definition of persecution.  

23                  The affidavit was written in poor English and in places is all but unintelligible.  To a large extent it describes very generally the nature of religious and ethnic tensions in India.  It also raised new allegations that the appellant had been detained by police in India.

REASONS

The two grounds of appeal

24                  Both grounds of appeal are related and it is convenient to consider them together. 

25                  The appellant submits that the Federal Magistrate failed to find an error of law, jurisdictional error or breach of s 424A(1) of the Act resulting in a denial of procedural fairness.  He also submits that an unfair method was adopted by the Tribunal in making its decision.  No particulars were provided. 

26                  With respect to error of law, in the court below, the appellant particularised his argument by stating that:

… the Tribunal failed to analyse properly 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.

27                  In my opinion, the Tribunal correctly approached and determined the question whether the appellant might suffer future harm if he returned to India.  The Tribunal found that the appellant did not have a genuine fear of persecution while in India for a number of reasons.  The appellant had remained in India after he had first claimed to be attacked, the appellant had returned to India twice after he had travelled to Thailand and the appellant had remained in Thailand for over two months after his Australian visa had been granted, despite claiming that K was aware of his residence in Thailand.  These findings were inconsistent with his claim of fear of persecution.  The appellant claims that the Tribunal erred in relying on this to make its adverse credibility finding.  I do not agree.  These were findings of fact which were open to the Tribunal. 

28                  The Federal Magistrate correctly noted at [25] that the Tribunal had considered the chance of the appellant being persecuted should he return to India.  The Tribunal found that there was no real chance that the appellant would face persecution for a Convention reason if he were to return to India.  The Tribunal, in so finding, rejected the appellant’s claims that he was targeted by K or any other person or group and that he would be targeted in the reasonably foreseeable future.  It was accordingly unnecessary for it to consider whether it was reasonable for him to relocate to another state. 

29                  The Tribunal therefore squarely considered the risk of future harm to the appellant and properly applied the “real chance” test.  No jurisdictional error is demonstrated by this claim.

30                  The Tribunal’s obligations in respect of the natural justice hearing rule are contained in Part 7, Division 4 of the Act: s 422B of the Act.  The Tribunal complied with these obligations by inviting the appellant to a hearing and providing the appellant with an opportunity to give evidence at the time and date scheduled for the hearing pursuant to s 425 of the Act. 

31                  Under s 424A(1) the Tribunal is required to provide the applicant with, in a way it deems 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.  The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.  The Tribunal must invite the applicant to comment or respond to it.

32                  The Tribunal informed the appellant of its concerns regarding his claims during the hearing, thus providing the appellant with an opportunity to give evidence with respect to the issues arising in relation to the decision under review.  The Tribunal sent two letters to the appellant pursuant to s 424A of the Act.  The appellant replied to each of them. 

33                  The Tribunal, in making its decision relied on documents, including sworn statements provided by the appellant, oral evidence given at the hearing and information obtained from the appellant’s original application which all fall under the exceptions provided in s 424A(3) of the Act.  There has been no failure by the Tribunal to comply with s 424A. 

34                  The appellant was provided with a full and fair opportunity to meet the Tribunal’s concerns about his claims.  The Tribunal complied with its statutory obligations to afford procedural fairness to the appellant and no breach of those obligations has been demonstrated.  

The complaints in the appellant’s affidavit

Delay

35                  I reject this complaint.  There is no basis for it.  The application for review was filed in mid November 2007.  The Tribunal delivered its decision on 21 February 2008. 

No evidence to justify decision

36                  The Tribunal considered the appellant’s claims and the material before it at length.  Its decision was reached in a reasoned manner and on the basis substantially of evidence and information provided by the appellant.  The Tribunal is not obliged to refer in its reasons to every item of evidence that was before it; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.  The Tribunal, however, must provide reasons why it has rejected or accepted individual pieces of evidence on which the findings are based; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407.  The Tribunal did this.  There is no substance in this complaint.

Failure to take independent country information into account

37                  The claims of the appellant were that he had been subjected to violent assaults and continued threats by K or at the instance of K.  He also claimed that there had been an attempt to kidnap his daughter.  His evidence as to these was rejected as vague and inconsistent and because his conduct in returning to India from overseas on at least one occasion belied any fear of persecution.  It was unnecessary, in light of these findings, for the Tribunal to obtain and consider independent country information.  The appellant did not adduce such evidence and there was no obligation on the Tribunal to secure evidence of this kind.  The Federal Magistrate at [26] was correct in so finding.  I reject this complaint. 

Tribunal failed to make findings on all claims

38                  This complaint is not particularised.  It is unnecessary to repeat the reasons why the Tribunal rejected the appellant’s claim.  It is sufficient to say that the appellant’s core claims as to what happened to him and which gave rise to his fear of persecution were all considered and rejected by the Tribunal.  It was open to it on the material before it to do so. 

Relocation

39                  The Tribunal did not consider the question of relocation of the appellant within India in arriving at its decision.  It was unnecessary for it to do so given its rejection of the appellant’s claims.  There is no merit in this complaint. 

40                  I should add that the generalised description of ethnic and religious tensions in India is irrelevant to the appellant’s case.  He made no claim for a protection visa on that basis.

Persecution 

41                  The appellant claims that the Tribunal misinterpreted the law relating to the definition of persecution.  The Tribunal’s reasons set out the definition of persecution for the purposes of a Refugee Convention claim.  The Tribunal found that the appellant was not a credible witness and did not accept his claims that he was targeted by K or any other person or group in India and suffered any harm as a result.  The Tribunal found that the appellant did not have a genuine fear of persecution while in India.  These findings were open to the Tribunal on the evidence before it.  The question of the definition of “persecution” does not arise in these circumstances. 

42                  No relevant error of law has been demonstrated.  The appeal should be dismissed and the appellant should pay the first respondent’s costs.

Associate:        

Dated:         29 August 2008