FEDERAL COURT OF AUSTRALIA

SZNIJ v Minister for Immigration and Citizenship [2009] FCA 1106

Migration Act 1958 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167

SZNIJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 690 of 2009

REEVES J

1 OCTOBER

BRISBANE (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $3,350.

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

INTRODUCTION

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 17 June 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

background and PROCEDURAL HISTORY

2                     The appellant is a citizen of India who arrived in Australia on 9 July 2008.  On 19 August 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

CLAIMS OF religious PERSECUTION

3                     The appellant claimed to be a Catholic who worked for the Trivandrum Social Service Society, a Christian organisation.  As a result, he claimed he was targeted by the Rashtriya Swayam Sevaksangh (‘RSS’), a Hindu extremist group.

4                     The appellant claimed that while he was working for the Society, he provided information to the police which led to the arrest of various members of the RSS for drug dealing, including a prominent RSS gangster, Ravi Kunnuvazhi (‘Ravi’).

5                     After their release from prison, the RSS drug dealers attacked the appellant and left him severely injured.  He required intensive treatment in hospital for about four months.  The police then arrested the RSS drug dealers involved in that attack and a case was pending in court against them.

6                     However, the appellant claimed to be in fear of the RSS drug dealers so he decided to leave India and live in Dubai.  Since he decided to leave India, the case against his attackers was withdrawn.  On his return to India, the appellant did not return to his home in Kerala, but instead travelled to Chennai, Madras, Bombay and Calcutta.  He found it difficult to live in these places because he did not know the language.  He therefore returned to Kerala where he stayed with his sister.  The RSS found out about his return and his sister, her husband and their son were attacked by them.  Although nothing happened to the appellant – he was not at home at the time of this attack – he was fearful that he would be attacked by the RSS.  He, therefore, decided to come to Australia to seek protection.

THE tribunal affirms the delegate’s decision – religion not the motivation for the attacks

7                     The Tribunal accepted that the appellant is a Catholic, that he reported the activities of the RSS drug dealers to the police and that, after their release from prison, he, his sister and her family were subsequently beaten by the drug dealers.  The Tribunal also accepted that a case was filed against the persons who attacked him, but this case was later withdrawn because the appellant left India.  The Tribunal also accepted that the appellant was now fearful that these persons would attack him again.

8                     However, the Tribunal was not satisfied that religion was a motivating factor for the past attacks – that he was a Christian and they were Hindus – or would be for any future attacks.  Instead, the Tribunal concluded that the appellant was attacked by Ravi and his RSS associates out of revenge because he reported their illegal activities to the police and, as a result, the police took action against them.

9                     The Tribunal was satisfied that the appellant would be able to freely and safely practise his religion in Kerala without adverse interest from the RSS, or their supporters, or any other religious group.  While the Tribunal accepted that communal violence between religious groups did occur in India, it concluded, from independent country information, that the authorities in Kerala provided a reasonable level of protection to Christians when there was any heightened risk of communal violence.  Accordingly, the Tribunal did not accept that the appellant would be at risk of serious harm by Hindu extremists in India so as to give rise to a well-founded fear of persecution for a Convention reason. 

THE FEDERAL MAGISTRATE findS no jurisdictional error

10                  In his judicial review application to the Federal Magistrates Court, the appellant raised the following grounds:

(1)       Jurisdictional error

(2)       Breach of procedural fairness

(3)       Breach of natural justice.

11                  The Federal Magistrate noted that none of these grounds was particularised.  His Honour also observed that the oral submissions the appellant made at the hearing were all directed to the merits of his application, rather than to identifying any jurisdictional error.

12                  Notwithstanding these conclusions, the Federal Magistrate proceeded to consider whether the Tribunal had complied with its obligations under ss 424A and 425 of the Migration Act 1958 (Cth) (‘the Act’).  In relation to s 424A, his Honour found that the Tribunal’s decision was based on information which fell within the terms of s 424A(3) and the Tribunal was, therefore, not required to give particulars of it to the appellant.  His Honour therefore concluded that there was no breach of s 424A of the Act.

13                  In relation to s 425, the Federal Magistrate concluded that the Tribunal had properly and adequately canvassed with the appellant during the hearing all of the matters that were significant to its review of the delegate’s decision.  As a consequence, his Honour concluded that there was no breach of s 425 of the Act.

14                  Finally, his Honour considered whether the appellant received a fair hearing, and he concluded that there was nothing to suggest bias, actual or apprehended, on the part of the Tribunal.  Having found no jurisdictional error in the decision of the Tribunal, the Federal Magistrate accordingly dismissed the appellant’s application for judicial review.

the conduct of the present APPEAL

15                  On 8 July 2009, the appellant filed a notice of appeal in this Court which alleged that:

1.         The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal, The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.

2.         Te Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal  

                        [Errors in original]

16                  When this matter was first listed before me in Sydney on 19 August 2009, the appellant sought an adjournment because he claimed he had a health problem.  He produced a certificate from a doctor to support this claim.  Because the Minister could not point to any prejudice, I allowed a short adjournment of the matter to 14 September 2009.

17                  The adjourned hearing was conducted by videoconference facility link between Brisbane and Sydney.  At that hearing, the appellant appeared in person unrepresented, but assisted by an interpreter.  Mr White appeared for the Minister.

impermissible MERITS review

18                  The appellant did not file any written submissions and his oral submissions were directed to the merits of the Tribunal’s decision.  The Minister filed a set of written submissions and relied upon those.

19                  The errors identified in both grounds of appeal (above) seek to challenge the factual conclusions the Tribunal reached, as to:

●          whether there was evidence to establish that the appellant was a refugee; and

●          whether there was a real chance that the appellant would suffer persecution if he were to return to India.

20                  Even if there was some error in the Tribunal’s conclusions about these matters – it is not possible from the unparticularised and general nature of these two grounds of appeal to begin to assess whether there is – there is clear authority that errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510 at 560 (at [137]).

21                  Furthermore, it is not the role of this Court, nor is it the role of the Federal Magistrates Court, to second guess the Tribunal’s fact finding role, or to engage in a merits review of the Tribunal’s decision.  These are matters that fall squarely within the fact finding jurisdiction of the Tribunal: see, for example, NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

22                  It follows that both grounds of appeal must be rejected.

23                  Notwithstanding this conclusion, because the appellant is unrepresented, I have considered the reasons of the Federal Magistrate in relation to the grounds of review raised before him – which differ from the two grounds of appeal before this Court.  Having done so, I consider that his Honour has correctly stated the law in relation to those matters and given clear and cogent reasons for concluding that the Tribunal committed no error, let alone jurisdictional error, in its consideration of the appellant’s application.

conclusion

24                  For these reasons, this appeal must be dismissed.  I so order.  I also order that the appellant pay the Minister’s costs of this appeal fixed in the sum of $3,350.

Associate:

Dated:         1 October 2009