FEDERAL COURT OF AUSTRALIA

SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893

Migration Act 1958 (Cth) ss 91R, 422B, 424, 427, 430

Minister for Immigration and Multicultural Affairs v Yusuf (2000) 206 CLR 323 referred to

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 considered

SZHUH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 665 of 2008

PERRAM J

22 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court.  The appellant is a citizen of India.  He arrived in Australia on 12 February 2005.  On 23 March 2005 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”).  A protection visa is the kind of visa for which a person applies when seeking refugee status.  To obtain such a visa it is necessary to demonstrate to the satisfaction of the Minister that the requirements of Article 1A(2) of the Refugees Convention (as amended by the Refugees Protocol) have been met.

2                     On 18 July 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa.  As he was entitled to do, on 16 August 2005 the appellant applied for a review of that decision.  By law the review of that decision was assigned for hearing to the Refugee Review Tribunal (“the Tribunal”).  The Tribunal conducted its hearing on 19 October 2005.  The Tribunal had before it the departmental file which included the original application for the protection visa and the delegate’s decision record. The appellant gave oral evidence before the Tribunal in the Malayalam language and an interpreter was used in respect of his evidence.

The Tribunal’s findings and reasons

3                     The Tribunal found as follows:

The Tribunal accepts that the applicant and his brother-in-law, Radhakrishnan, were active members of the CPI-M.  The Tribunal accepts that Radhakrishnan’s ex-wife and her family are members of a rival political group, the RSS.  The Tribunal accepts that the applicant was involved in incidents with RSS members, firstly outside the Court in December 1998; and a short period thereafter when he was called names; in December 2003 when as a result Radhakrishnan committed suicide; and on 1 June 2004 when he was attacked with hockey sticks and knives.  The Tribunal accepts that the applicant received injuries to his left arm as a result of the last attack.

In response to the Tribunal’ s questions, the applicant stated at the hearing that RSS members had come to his place 2-3 times prior to 1998, but when they came to know he worked for the Electricity Board, they knew there would be community support (for the applicant).  No claims of harm were made by the applicant as a result of these visits by RSS members, and the Tribunal finds that no serious harm was received by the applicant, and the actions do not amount to persecution.

The four incidents thereafter, commencing with the mob outside the Court in December 1998, the name-calling some time later, the incident involving the death of Radhakrishnan, and the attack on the applicant in 2004, all involved members of the RSS.  At the hearing the applicant stated that the initial incident in 1998 was due to the settlement, which the applicant stated his side had won, and ‘they wanted us to lose.’  The applicant agreed at the hearing that the reason the RSS wanted to kill him and Radhakrishnan was because of the settlement.  He confirmed this, agreeing that the attacks were as a result of the settlement outcome.  On a further occasion at the hearing the Tribunal asked the applicant, ‘So are you saying that the attacks in 2003 and 2004 were connected to the settlement?’  The applicant replied ‘’Yes, connected to that only.’  The Tribunal asked ‘Did something flare up for them (the RSS) to attack you in 2003 and 2004?’  The applicant responded, ‘No, only that, no other reasons.’

The Tribunal put to the applicant at the hearing that it was concerned that the political motivation for the confrontations with the RSS as claimed by the applicant, was not the essential and significant reason for the persecution, but rather the family matter (relating to the settlement).  The applicant responded that the RSS would not have attacked except for him being a Marxist. 

The Tribunal does not accept this explanation.  Previous opportunities had existed for the RSS to attack the applicant prior to the incident in 1998, but as the applicant stated at hearing, this did not occur.  The Tribunal finds that the matter which initiated the series of confrontations commencing in December 1998 was the court settlement.  The Tribunal finds that the court settlement is not related to the applicant’s political opinion in any way.  The Tribunal also finds that the settlement has no other Refugee Convention nexus.

The Tribunal finds that a Convention reason or reasons do not constitute an essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

4                     Thus, it will be seen that the Tribunal determined that although the appellant had been persecuted, the persecution was not for a Convention-based reason.  The Tribunal was also able to put its decision on the separate basis of State protection.  It said:

The Tribunal has considered whether, in the event of further attacks on the applicant, whether he can obtain adequate state protection.  In this regard, it is clear that the State concerned, in this case India, is not required to guarantee the safety of its citizens from harm caused by non-state persons (MIMA v Respondents S152/2003 (2004) 205 ALR 487 at [26]).  The independent evidence, which  the Tribunal accepts, is that India is a long-standing democracy, the judiciary is independent, the states and the central government provide for law and order, there is a right of peaceful assembly, freedom of speech and there is an open trial in most cases.  As such, the Tribunal finds that there are the normal checks and balances associated with a fully functioning democracy in India.  Further, Kerala has been generally described as a law-abiding state, where citizens live under the protection of the law and legal recourse is available to those who feel threatened or persecuted.  The Tribunal is satisfied that the applicant will have the same level of protection as all other Indian citizens.

As such the Tribunal finds that the applicant will enjoy the meaningful protection of the Indian Police and other security institutions.  The Tribunal is satisfied that the protection within India meets international standards of protection of its citizens, with India taking reasonable measures to protect the lives and safety of its citizens which includes appropriate criminal law, and a reasonably effective and impartial police force and justice system.  The Tribunal is satisfied that the protection within India meets basic norms of civil, political, and socio-economic human rights and that the internal safety is not illusory or unpredictable and state accountability for the harm is established.

5                     The reasons of the Tribunal rested therefore on two independent bases.  In the result, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa.

Federal Magistrates Court

6                     The appellant then commenced proceedings in the Federal Magistrates Court to quash the determination made by the Tribunal.  Review by that Court is, for various reasons, limited to the identification of jurisdictional error.  The federal magistrate had before her a notice of appeal which raised a large number of grounds.  Her Honour heard extensive oral submissions from the appellant but was unable to identify any jurisdictional error in the approach of the Tribunal.  In the circumstances her Honour dismissed the application for relief.

7                     It is from that determination that the appellant now appeals.  There was filed in this Court a notice of appeal which raised five grounds of appeal.  Subsequently the appellant filed a written document in which he set forth some additional grounds.  When the matter was first called on for hearing the appellant appeared assisted by an interpreter in the Malayalam language.

8                     In his oral submissions, he made four points.  First, it was said that the Tribunal had erred in concluding that his brother-in-law had committed suicide.  He claimed that, in fact, his brother-in-law was alive and living in Dubai.  He tendered two documents said to make good that proposition.  The first was a handwritten document which read in part as follows:

Radhakrishan at working in Dubai

Rainbo Star Cattaring Saraveses

3933 885

P.ONO  241219  VUR DUBAI

Phone  0011971507879252

Tife Camp - 5 (supperveses)

BESHEER  Operation Manager

Phone  0011971505712987

…

9                     He also tendered a document which appeared to record the sending by him to a person in India of $131.19.  During the hearing the appellant explained that the person to whom he had sent the money was a relative of his brother-in-law.

10                  There is no doubt that there was before the Tribunal a sworn statutory declaration by the appellant to the effect that his brother-in-law had committed suicide in a building in 2003 when he was surrounded by persons from the RSS party.  It is difficult to discern how the Tribunal could have committed a jurisdictional error in accepting the appellant’s own sworn evidence.  Following an adjournment granted for other reasons, the appellant sought to tender further evidence to prove that the brother-in-law was alive.  I rejected the evidence.  I am prepared to assume that the brother-in-law is, in fact, still alive and living in Dubai.   It is difficult however to understand how that advances the appellant’s claim that the Tribunal committed a jurisdictional error by failing to conclude that the appellant was not entitled to refugee status.

11                  Secondly, the appellant argued that the Tribunal had failed to make further inquiries in India.  Had it done so, the appellant argued that it would have discovered his status in Kerala and it would have more clearly understood the political circumstances surrounding his membership of the Communist Party of India (Marxist) and the RSS party.  Sections 424 and 427(1)(d) of the Act both permit the Tribunal in its discretion to make further inquiries.  However, it has been held that those provisions do not impose, generally speaking, any duty upon the Tribunal to make such inquiries.  It may be that the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155provides the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries.  It is doubtful however whether the principle in Prasad has survived the enactment of s 422B of the Act.

12                  At the time of the Tribunal’s decision, s 422B provided:

Exhaustive statement of natural justice hearing rule

(1)     This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)     Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

13                  That provision is likely to have removed the operation of the Prasad doctrine.  In any event, I do not think that the Prasad doctrine would have any applicability to the present facts.  There were no circumstances calling for such an inquiry.  Accordingly, I reject the argument that the Tribunal committed jurisdictional error by failing to make further inquiries in India.

14                  Thirdly, the appellant argued that if he were now to be returned to India he might be killed.  It seems to me that the Tribunal accepted the correctness of that proposition.  In that circumstance, it is difficult to discern how there can be a jurisdictional error involved in the Tribunal’s treatment of the matter.

15                  Fourthly, the appellant argued that the facts which occurred before 1998 were not related to the settlement but occurred for Convention reasons.  The Tribunal dealt with that matter by finding that the provisions in s 91R applied to them; in other words, it found that they were insufficiently important to amount to persecution in the relevant sense.

16                  It is possible to view the confrontations occurring after 1998 as being of a political nature.  In that context, the events prior to 1998 which appear to have been political in nature, but minor in extent, could have been seen to support the notion that the events after December 1998 should be seen in the same light.  The Tribunal, it seems to me, was alive to that possibility.  However, it took into account the evidence of the appellant that the only reason why he had been harassed after 1998 was because of the settlement arising out of his brother-in-law’s marriage.  If the matter rested there, there would be no basis for saying that the Tribunal was not permitted to arrive at the conclusion it did.

17                  However, before me the appellant denied ever giving such evidence to the Tribunal.   There was no attempt on the first day of the hearing to prove the truth of that proposition by reference to the transcript of the proceedings before the Tribunal.  Because of the seriousness of the matter, I adjourned the proceeding for four weeks to 3 December 2008 to give the appellant an opportunity to obtain the tapes of the hearing before the Tribunal.  When the hearing continued the appellant made no attempt to make good this case.  No tapes were tendered; no further evidence was sought to be led other than some photographs said to be of the brother-in-law demonstrating, so it was said, that he was alive.  Because the adjournment was permitted solely to permit evidence to be garnered on what occurred before the Tribunal.  I rejected this material.  In the end, nothing was done to show why the Tribunal’s acceptance of the appellant’s own account should not stand.   No error was committed by the Tribunal in its approach.

18                  It is then necessary to deal with the other grounds in the notice of appeal.  Ground two asserts that the learned federal magistrate failed to find “error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903”.  This ground was unparticularised and not explained.  Accordingly there was no error disclosed.  Ground three was that the federal magistrate “failed to take consideration that the Tribunal decision was unjust and was made without taking into account either the full gravity of [the appellant’s] circumstances and consequences of the claims”.  The short answer to this is that the federal magistrate was not required to take into account that the Tribunal’s decision was unjust.  Different considerations might have arisen if the present form of s 422B(3) had been in force at the time of the Tribunal’s decision.  It is not necessary to express a view about that.

19                  Ground four was an allegation that in making its determination the Tribunal had failed to record its decision in accordance with s 430 of the Act.  Section 430 of the Act requires the Tribunal’s decision to be in writing.  The appellant provided full particulars of this ground.  First it was said that the Tribunal had made no finding as to the extent or nature of the persecutions suffered by the appellant.  This suggestion is without substance.  The Tribunal dealt at length with the various aspects of persecution which the appellant complained of and, indeed, accepted that these events had occurred.

20                  Secondly, it was said that the Tribunal had found that the persecution was not suffered for a Convention reason, but had failed to give any reasons for why that was so.  This is simply incorrect.  The Tribunal explained that the reason it was of the view that the persecution was not for a Convention reason was that the appellant had given evidence to it that the confrontations after December 1998 were connected to the settlement involving his brother-in-law and not to his membership of the Communist Party.

21                  Thirdly, the appellant complained that the Tribunal found that he could seek the protection of relevant authorities and the legal system in India.  It is true that the Tribunal so found.  It is impossible to characterise that conclusion by the Tribunal as an infringement of the requirements of s 430.  Fourthly, he complained that the Tribunal failed to record the material facts for the reasons referred to above.  It seems to me, in light of what I have just said, that that allegation is without substance.  In any event, the argument could not be accepted in light of Minister for Immigration and Multicultural Affairs v Yusuf (2000) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ.

22                  Ground five complained that the Tribunal had, by reason of the first three grounds, failed to carry out its review function.  It is, of course, true that had the Tribunal failed to carry out its review function that it would have engaged in a jurisdictional excess.  However, in the circumstances where I have found each of the other grounds not to have been made out it follows that this ground is not made out either.  I should say for completeness that two particulars were provided for ground five.  The first was that the Tribunal did not consider that the appellant had been under immense intimidating pressure from the RSS.  It seems to me that that is not factually correct.  The Tribunal recorded its findings about that.  Secondly, it was said that the Tribunal did not consider the appellant’s claim that RSS members would kill him if he returned to India.  This is factually incorrect.  The Tribunal did record that claim and, it seems to me, accepted it as well.

23                  The appellant also filed written submissions in which he sought to impugn the Tribunal’s conclusion that the confrontations after December 1998 had occurred because of the settlement.  I have already rejected that argument.  It was then argued that the Court below ought to have held that on the evidence it was open to the Tribunal to find that the appellant was a refugee.  There was no occasion for the learned federal magistrate to reach such a conclusion.   Her inquiry was limited to the identification of jurisdictional error.

24                  It was then said that the Tribunal had failed to record its decision in accordance with s 430 of the Act.  This was effectively the same argument I have already considered; it should be dismissed for the same reasons.  Finally, the appellant submitted that the Tribunal had failed to analyse properly the future harm he might face if he had to go back to India.  I have already noted that the Tribunal accepted, so far as I can see, that he might be killed if he returned to India.

25                  In those circumstances the appellant has failed to demonstrate any error in the approach of the learned federal magistrate.  A number of the matters which were raised in this Court were not raised before the federal magistrate.  Without determining whether those grounds should be permitted to be raised, it suffices for present purposes to observe that none of them would have succeeded.  Accordingly, the appropriate order is that the appeal be dismissed with costs.

Associate:

Dated:         22 December 2008