FEDERAL COURT OF AUSTRALIA

SZNQR v Minister for Immigration and Citizenship
[2010] FCA 152

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                                             This is an appeal against a decision of the Federal Magistrates Court refusing the appellant’s application for constitutional writ relief:  SZNQR v Minister for Immigration [2009] FMCA 1035.  The appellant is a citizen of the Republic of India.  He arrived in Australia in August 2008 and about a month later applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth).  In the visa application, the appellant stated that he feared persecution based on his membership of a political party in India and by reason of his being a member of the Muslim minority religion in that country.  A delegate of the Minister, after interviewing the appellant, refused the application in late December 2008.  The appellant then applied to the Refugee Review Tribunal for a review of that decision.  After a hearing, the tribunal decided on 6 May 2009 to affirm the delegate’s decision.  The appellant then applied to the Federal Magistrates Court and now brings an appeal from his unsuccessful application there.

The appellant’s claims

2                                             The appellant’s claims to the delegate were that he had become a member of the student wing of the Congress Party at his school and then later had continued to involve himself in politics.  His father had been a banker who was involved in social activities in Bihar State and was well known in the local area.  His father had involved himself in the Indian Peoples’ Front political party which looked after the interests of the local Muslim people.  He decided to stand for election to parliament in about 1994.

3                                             The appellant claimed that the opposing candidate became very angry with his father’s decision to oppose him and asked him to withdraw his nomination threatening him with death if he did not do so.  On his father’s refusal to buckle to this threat, the appellant claimed that persons associated with his father’s political opponent came to their house and abducted his father who has apparently never been seen or heard of again.  When little appeared to be done to investigate this abduction, the appellant claimed that he discussed what he should do with members of his political party and that they told him to write a letter to the Police Minister.  He claimed that he wrote such a letter and then he went to see the Police Minister giving him the names of the persons who were responsible for the abduction of his father.  He claimed that the Police Minister disclosed to the abductors and their associates the fact that the appellant had complained.  The appellant asserted that he then received death threats himself forcing him to leave Bihar State and move to Hyderabad in the State of Andhra Pradesh.

4                                             The appellant claimed that he began a hospital supply business in Hyderabad which was progressing well.  He claimed to have joined another political party in Hyderabad called MIM and that he supported that party and its local candidate and member of parliament with whom he worked hard.  He claimed that the political opponents of that member of parliament were not happy with his activities and went to the hospital to pressure the hospital to cease its involvement with the appellant’s business.  He claimed that the hospital informed him that it did not want to involve itself in any kind of dispute and that therefore it did not wish to continue doing business with the appellant.

5                                             He claimed that after talking to his friends they went to speak to the opposing candidate who threatened the appellant that if they worked against him he would kill him.  He claimed that he told the opposing candidate that it was his right to engage in political activity and conduct his business, but that the threat was repeated.  The appellant claimed that he went to the police and complained about this person and that the police then went to the political opponent and informed him of the appellant’s complaints to them.

6                                             He claimed that in 1998, when he was coming home from his political party’s office, he was attacked by a number of people at night and told that it was his final warning and that if he did not listen to his attackers’ leader, he would not get another chance.  He claimed that the attackers told him that Muslims were the problem for the country and, if he wanted to live there, he had to listen to what they said, because the police would not help him.

7                                             After discussing matters with his family, a visa to work in Saudi Arabia was arranged for the appellant and he left India and worked in Saudi Arabia for ten years.  In the meantime he married there and has had children.  He claimed to have returned to India on a number of occasions to ascertain his father’s fate but had not been able to go either to Bihar or Hyderabad.

8                                             He claimed that in 2008 his Saudi Arabian employer had determined not to renew his engagement there and that, as a result, he had to return to India.  On his return, he claimed that his previous enemy had informed the police that he had become a member of a jihadist organisation that had links with an alleged terrorist who had been responsible for bombings in Hyderabad and other places.  He claimed that the police had sought to raid his home at that time but a neighbour had informed him that they had gone to the wrong address.  As a result, he claimed, he was afraid for his life and the future of his children and that he had told his family he could not live in India and thus left for Australia.  He claimed that if he went back to Bihar he would be killed or abducted, if he went to Hyderabad the opposition would kill him and the police would persecute him because he was a Muslim.

The delegate’s decision

9                                             The delegate interviewed the appellant.  In the delegate’s decision record he concluded that he was not satisfied that the appellant had come to the adverse attention of the Indian authorities because of his religion, political opinion or any other Convention reason and that he did not have a well founded fear of persecution upon return to India in the reasonably foreseeable future.

10                                          The delegate noted that at the interview, the appellant had told him that he was not a member of any political party in India, had had no involvement in politics since 1998 and would not be involved in politics if he returned to India.

11                                          The delegate did not accept that the appellant held any position of political influence in any political party but accepted that he had been involved in administrative duties.  He did not accept the appellant’s claim that his previous enemy had informed the police of an association with a jihadist terrorist group.  The delegate considered that claim to have been contrived to bolster the appellant’s claim to refugee status and noted that the fact that he had been able to travel freely in and out of India on numerous occasions, indicated that he was not of any adverse interest to Indian authorities. 

12                                          The delegate accepted that the appellant may have had some adverse encounter with political extremists but did not accept that there was an objective basis for the harm he claimed to fear.  He did not accept the veracity of the appellant’s claims in their entirety.  The delegate found that based on independent country information concerning India, while there were instances of police acting with impunity from the law, in general the Indian police and judiciary were able and willing to enforce the law in respect of crimes committed, irrespective of the identity of the perpetrators.  The delegate referred to independent country information that attacks on Muslims were largely perpetrated by individuals associated with extremist Hindu nationalist groups, and that although these continued to occur, and the perpetrators were rarely held to account by State legal apparatus.  The delegate accepted that this may have given rise to the appellant’s reservations about his return to India, but concluded that currently Indian authorities took reasonable and appropriate measures to ensure that the protection of the law was available to all Indian citizens on a non-discriminatory basis.

13                                          He concluded, based on independent country information, that the appellant should be able to practise his religion freely in India.  The delegate found that the appellant’s fears related to a localised threat.  He found that the appellant would be able to relocate within India to avoid the risk of harm which was a reasonable option for him.

The tribunal’s decision

14                                          The tribunal set out the detail of the appellant’s claims and evidence identified in his application for a protection visa and in the interview with the delegate to which it said it had regard.  It noted that the appellant had stated that his mother, brother and wife continued to live in Bihar, although his wife did so in a different locality to the others.

15                                          During the hearing the tribunal clarified with the appellant a number of aspects of his claims and explored those in some detail.  It discussed with him, as they arose, issues on which it had had reservations about the veracity of his evidence.  The tribunal explored the appellant’s claims of being threatened by persons associated with the political opponent of the candidate for whom he was working in Hyderabad.  It pointed out that the popular Muslim leader for whom the appellant claimed to have worked had been elected to a position on a number of consecutive terms, including in the mid 1998 election.  The tribunal questioned the appellant as to why it would be likely that those making the threats could change the Muslim politician’s chances of election by threatening the appellant. 

16                                          The tribunal discussed with the appellant the fact that Hyderabad was represented by a Muslim member in Lok Sabha (the lower house of the Indian Parliament) and that country information noted that apart from sporadic communal clashes, there was no information before the tribunal that members and supporters of the MIM were being persecuted by the opposing BJP Party, or any other party in Hyderabad.

17                                          The tribunal also raised with the appellant its difficulty in believing, first, that he had been accused of being associated with terrorists during a two day visit to Hyderabad in 2008 after an absence of 10 years, secondly, that although he did not know who had made this accusation against him, the police had immediately responded to it by raiding the wrong address, thinking it was his.

18                                          In its findings and reasons, the tribunal accepted the appellant’s accounts of his experiences in Bihar, including the abduction of his father as a result of his political opponent’s conduct, his reporting of the abduction to police and the police minister, and his claimed receipt of threats thereafter.  But, the tribunal noted that the appellant did not claim to have been harmed or to have harboured any fears as a result of his party membership or activities in Bihar.  It found that the appellant had confirmed at the hearing that the only reason he had been threatened by his father’s opponent, was because of the complaint he had made against him.  The tribunal found that there was no real chance that the appellant would suffer harm in Bihar for reasons of his actual or imputed political opinion, religion, membership of a particular social group of his father’s family, or any other Convention reason.

19                                          The tribunal then turned to the appellant’s experiences in Hyderabad.  It concluded that his evidence was not persuasive and gave rise to serious reservations in the tribunal as to the credibility of some key aspects of his claims.  The tribunal found that the appellant, like many other Muslims in Hyderabad, was an active supporter of the MIM Party, but that he did not occupy any significant role in the party and his activities could be described at a low level.  The tribunal found that the appellant had not made a contribution to the MIM that posed any political threat to the BJP, and that he had not been able to explain persuasively to the tribunal why he would have been targeted and threatened in the manner he claimed.  The tribunal found that Muslims comprised 40% of the population in Hyderabad.  It noted that the MIM was one of the foremost representative parties of Muslims in the State and the most powerful Muslim party in India.  It found that, apart from communal clashes from time to time, there was no evidence in the country information that members and supporters of the MIM were persecuted by the BJP or any other party, and there was no information before the tribunal to suggest that the large population of Muslims in Hyderabad was a target of the BJP or Hindu extremists.

20                                          The tribunal concluded that the appellant’s evidence as to why he would have been singled out and threatened cast serious doubt on the veracity of his claims.  The tribunal referred to the fact that at the interview with the delegate and the hearing before the tribunal, he had attributed some of the hostility claimed against him to his Bihar origins.  The tribunal said that in light of its other concerns, the appellant’s Bihar experiences did not remedy the defects in his evidence.  It did not accept that he had been threatened or otherwise targeted by the leadership or members of the BJP in Hyderabad for reasons of his actual or imputed political opinion, religion or any other reason.  It also did not accept that his business in Hyderabad had been targeted by the BJP for the reasons the appellant advanced.  Nor did it accept that he had stopped his involvement in political activity in 1988 out of fear of harm.

21                                          The tribunal did not accept as credible the appellant’s claims of being accused affiliation with a Muslim terrorist group and hunted by the police.  It also had regard to his low political profile in the past and his 10 year absence from Hyderabad.  In addition, the tribunal made the point that, if he had been accused of being associated with a terrorist organisation, the appellant would not have been able to travel to and from India as frequently and as easily as he had while working in Saudi Arabia without being apprehended or questioned at the airport.  Accordingly, the tribunal did not accept that the appellant had been accused of being associated with a jihadist terrorist group and that he had been pursued or wanted by the authorities in Hyderabad or anywhere else in India.

22                                          The tribunal noted that the appellant’s more general claims in his protection visa application about the situation of Muslims in India were not pursued at the hearing and that there was no information before the tribunal in the sources that it had consulted that Muslims were not generally safe in India or free to exercise their normal civil rights.  The tribunal was not satisfied that the appellant would face a real chance of persecution for reasons of his Muslim faith, were he to return to India.  It did not accept that he had been targeted by the BJP or anyone else in Hyderabad or the other elements of its claims.  Accordingly, it affirmed the decision under review.

The trial judge’s decision

23                                          In his application for review to the Federal Magistrates Court, the appellant relied on an amended application and written submissions that he made to his Honour.  The trial judge identified the grounds relied on before him for quashing the tribunal’s decision as being that the tribunal had allegedly failed:

·               to accept that the reason for the threat or fear that induced the appellant to leave Bihar was because of his political opinion or his membership of the Muslim minority;

·               to understand the nature of his claim relating to false terrorism charges;

·               to relate its acceptance of his evidence as to what had happened in Bihar to the harm he had claimed to have suffered in Hyderabad, or otherwise dealt with that matter illogically;

·               to have provided to the appellant under s 424A(1) of the Migration Act 1958 particulars of any information that the tribunal considered would be the reason or part of the reason for affirming the decision under review.

24                                          His Honour found that the appellant’s written submissions addressed some of the matters in the grounds in the application but otherwise argued the merits of his application for a protection visa.  He said that those written submissions did not raise any new grounds.  The appellant raised a further claim that the tribunal was biased in oral submissions to his Honour.

25                                          His Honour held that the appellant had not understood the tribunal’s reasoning in relation to the first ground.  He found that the tribunal accepted that the appellant had left Bihar following the abduction of his father and that that abduction had been politically motivated.  The trial judge said that the second aspect of this ground had been dealt with by the tribunal’s finding that it was not satisfied that the appellant would face a real chance of persecution for reasons of his Muslim faith if he were to return to India.  His Honour said that he was unable to see any jurisdictional error revealed by this complaint.  I agree with his Honour for the reasons that he gave.

26                                          The trial judge dismissed the second ground on the basis that the tribunal’s decision record revealed that it had understood the claim relating to the alleged false charges of association with a terrorist organisation and rejected it.  He held, correctly in my opinion, that it was not the function of the court to provide a merits review in respect of the tribunal’s disposition of that issue.

27                                          His Honour rejected the third ground on the basis that, first, it was not illogical for the tribunal to have accepted the appellant’s claims of his experience in Bihar and to have rejected his claims in relation to what happened in Hyderabad.  I agree.  Frequently, when people give accounts of experiences or events in evidence these will contain parts that a tribunal of fact can accept and other parts which it can reject.  Juries are often directed similarly that they may accept and reject parts of the same witness’ evidence.  His Honour also held, and I agree, that the fact that a person may experience particular treatment in one location because of a perceived or real or other imputed Convention ground, does not mean that in another location a similar result will follow and that the tribunal had not committed any error in coming to that view.

28                                          Next, his Honour described the appellant’s ground in relation to s 424A.  He said it related to findings by the tribunal following its interview with the appellant, its reading of his protection visa application and the associated documentation he had filed with the application for review together with the tribunal having listened to the interview between the appellant and the delegate.  He said that any information the tribunal received in that regard had been provided by the applicant and was not a matter which had to be referred to him for comment under s 424A.  Although it is of no moment for the disposition of the present appeal, his Honour was incorrect to have asserted that the information in the interview between the appellant and the delegate was provided by the appellant for the purposes of s 424A(3)(b).  That is because s 424A(3)(ba) provides expressly that s 424A(1) does not apply to information that the applicant for review gives during the process that led to the decision that was under review, “other than such information that was provided orally by the applicant to the department”.  The interview with the delegate is within this exception.  However, for present purposes this error is of no moment because the tribunal did not rely, as the reason or part of the reason for its decision, on anything that was said in the interview with the delegate.

29                                          His Honour rejected the bias allegation on the basis that no bias had been identified or proved.  He said that general comments about the tribunal’s reasoning processes, which were addressed to his Honour, could not satisfy the obligation of the party seeking to impugn a decision or bias or apparent bias, from complying with the obligation to provide full and proper particulars of that allegation.  I agree.

This appeal

30                                          In this Court the appellant claimed that his Honour erred in failing to find that the tribunal had made a jurisdictional error because it had:

·               rejected his claim of having a well founded fear of persecution based on his political activities in Bihar despite its acceptance of his account of what had happened there;

·               rejected his claim on the basis of “wrong observations”, had not assessed it logically, had not verified it, had intentionally used very old information to reject the appellant’s claim for protection and had made contradictory findings;

·               not provided, under s 424A of the Act, particulars of adverse information contained in his protection visa application and associated documents and that these had been used by the tribunal to reject his claim.

31                                          In his written submissions for this appeal, the appellant elaborated on some of the grounds of his appeal but also raised a number of new matters that were not before his Honour.  The appellant’s written submission was, to a degree, argumentative of the merits of the issues before the tribunal.  For example, he argued that the tribunal had failed to identify in its reasons evidence of his experience that the tribunal had found had not been persuasive and that he had not understood what kind of information or evidence he had needed to put to the tribunal to persuade it to grant his application.  He also argued that the tribunal needed to make its decision on the basis of current up-to-date information but that it had failed to discharge that responsibility.  However, the submission did not identify the information.  The appellant also asserted that he had not been able to give an explanation to the tribunal of key aspects on which it had serious reservations as to his credibility.  In his oral address, the appellant complained that the tribunal should have given him more time to deal with its finding on relocation.

Consideration

32                                          The first ground of appeal rehearses the first ground argued before His Honour.  For the reasons I have given, I am unable to see any error in what the tribunal did or in His Honour’s rejection of this ground.

33                                          The second ground of appeal is not particularised other than by the written submissions.  It amounts to no more than the appellant engaging in a complaint that the tribunal arrived at the wrong decision on the merits.  Neither the grounds of appeal, nor his written or oral submissions, identify any information that the tribunal used that was out of date or inappropriate.  The appellant’s assertion that the tribunal had made contradictory findings, appears to refer to its acceptance of his evidence in relation to the Bihar experience and rejection of his evidence in relation to his experience in Hyderabad.  For the reasons I have given, his Honour was correct to have rejected that argument.  It was open to the tribunal to treat these matters in the way in which it did.

34                                          The third ground of appeal, relating to s 424A, does not reveal any error in what his Honour found or any jurisdictional error in what the tribunal did.  Moreover, by reason of ss 424A(3)(b) and (ba), the tribunal was under no obligation to provide particulars in respect of information in the protection visa application and associated documents.

35                                          The first complaint in the written submissions appears to raise an assertion that the tribunal should have explained its reasoning process to the appellant so as to allow him to understand the process better.  It also appears to be a complaint that the tribunal’s reasons for rejecting him on credibility grounds were not adequate.  I am of opinion that any fair reading of the tribunal’s decision record reveals that during the course of the hearing it questioned the appellant and raised with him the substantial issues on which it rejected his evidence and claims on credibility grounds in a way that made clear the tribunal’s concerns about those matters.  I am satisfied that the tribunal gave full and adequate reasons for its conclusions on those aspects.  But, in any event, it is no part of the tribunal’s obligations to disclose what it was minded to do, so that the appellant could have had a further opportunity of criticising its thought processes before it reached its final decision.  As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration Multicultural Indigenous Affairs (2006) 228 CLR 152 at 166 [48]:

“Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgement.”

I reject this ground.

36                                          The next argument in the written submission has no substance.  While the tribunal ordinarily should act on the latest information available to it (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 Mason J;  SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 573 [40] per myself), there is no evidence that it did not do so in this case.  The third complaint in the written submissions is also without substance.  The tribunal’s decision record reveals that it did give the appellant a proper opportunity to explain his claims and address the tribunal’s concerns about them relating to the accusation of his being involved with the terrorist group.

37                                          Last, the appellant informed me today that he did not ask the tribunal for any more time to discuss the issue of relocation or any other issue or for an opportunity to provide it with further information in respect of those matters.  I am satisfied that the tribunal gave the appellant fair opportunity to deal with the question of relocation and explored that issue with him in a procedurally fair way.

38                                          Although this is an appeal and ordinarily grounds not relied on before the court below should not be allowed to be raised on the appeal, I have chosen to deal with those grounds since they have no substance and no harm is done to the appellate process by disposing of them on that basis.

Conclusion

39                                          For these reasons the appeal must be dismissed with costs.

Associate:

Dated:         1 March 2010