FEDERAL COURT OF AUSTRALIA

SZOBH v Minister for Immigration and Citizenship [2010] FCA 776

THE COURT ORDERS THAT:

1.                  The notice of appeal filed on 13 April 2010 be dismissed.

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

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 25 March 2010, 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 April 2009.  On 14 April 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”).  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 political and religious PERSECUTION

3                     The appellant claimed to fear persecution in India by reason of being a Muslim who was a member of the Indian Union Muslim League (“IUML”).  He claimed that he had been a local leader of the IUML and had become the Area Secretary in 1998.  He claimed that he faced opposition from the Rashtriya Swayamsevak Sangh (“RSS”) and Bharatiya Janata Party (“BJP”).  In particular, he claimed:  that false cases were filed against him; that he was attacked and beaten on many occasions; and hospitalised as a result; that the leaders of the RSS had threatened to kill him; and that his business was ransacked.

4                     The appellant claimed that he approached the police, but as they were influenced by the RSS, they refused to help.  Instead, they held him in custody for 24 hours and threatened to fabricate a false case against him accusing him as a local terrorist.  He claimed he was therefore forced to leave the country and fears that the RSS will kill him if he returns.

5                     The appellant further claimed that during the state legislative elections held in 2006 he campaigned for the IUML leader and, because of that leader’s success in the elections, was again targeted by the RSS.  The appellant claimed that when he approached the local police, they responded as they had done previously, with threats and revenge attacks.

the TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

6                     The Tribunal found that there were good reasons to doubt that the appellant was telling the truth about his involvement in the IUML and the problems he claimed to have had in Kerala as a result of this involvement.  In particular, the Tribunal found the appellant to be an unsatisfactory witness, who gave vague and inconsistent evidence over the course of his application.  The Tribunal did not accept that these inconsistencies were due to problems that the appellant claimed to have with his memory.

7                     The Tribunal also found that the appellant’s failure to answer truthfully at the hearing as to whether he had travelled out of India before coming to Australia undermined his credibility.  Similarly, his credibility was undermined by his inability to name a particular opposition candidate when he had given evidence that he had been in charge of his party’s campaign during the 2006 election.  The Tribunal found that his claims did not accord with independent country information as to the political situation in Kerala, and elsewhere.

8                     Given the above, the Tribunal did not consider that the documents the appellant produced after the hearing, which partially corroborated his claims, outweighed the problems that it had with his evidence.  The Tribunal accepted that the appellant had suffered the injuries indicated in a medical certificate submitted by him, but it did not accept his evidence that this resulted from his claimed involvement with the IUML.

9                     The Tribunal was therefore satisfied that there was not a real chance that the appellant would be persecuted by reasons of his real or actual imputed political opinion (in support of the IUML) if he were to return to Kerala now, or in the reasonably foreseeable future.  The Tribunal also found that, although the appellant did not specifically claim to face persecution by reason of his religion, he did not face a real chance of harm by reason of his religion if he returned to Kerala in the reasonably foreseeable future.

10                  Accordingly, the Tribunal found that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa, and affirmed the decision of the delegate.

the federal magistrate finds no jurisdictional error

11                  The appellant filed an application for judicial review in the Federal Magistrates Court on 11 December 2009.  In an amended application filed on 18 February 2010, the appellant raised the following grounds:

1.         My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.

2.         The Tribunal failed to consider an integer of Applicant’s claims, in failing to consider whether or not a liberal Muslim I India was at risk of harm from radical Hindus, and not able to access effective protection.

3.         The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

            Therefore, I submit that the Tribunal failed to analyse properly the ‘future harm’ that I may face if I have 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 my claims.

12                  In respect of ground 1, the Federal Magistrate was unable to discern any breach of s 424A of the Act.  First, his Honour ruled that, for the purposes of s 424A, “information” does not include the Tribunal’s doubts about an applicant’s evidence and claims, nor its view as to the inconsistencies it considered were present in what an applicant put before it, relying on SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18].  Secondly, the evidence and material that the appellant gave the Tribunal for the purpose of the review came within the exception set out in s 424A(3)(b).  Thirdly, the written information that the appellant gave to the Department came within the exception contained in s 424A(3)(ba).  Fourthly, the independent country information of a non in personam nature came within the exception set out in s 424A(3)(a).  Fifthly, any information that came within s 424A was put to the appellant at the hearing pursuant to s 424AA of the Act, and was therefore excluded from s 424A(1) by reason of s 424A(2A).  Sixthly, and similarly, the information which the appellant gave orally to the Department was discussed with the appellant at the hearing under s 424AA.

13                  His Honour also noted that the appellant’s oral submissions in this regard were not directed to the alleged breach of s 424A, but rather to claims that he was not treated fairly at the hearing and did not understand some of what was put to him.  His Honour found that these allegations were unsupported by any evidence before the Court.

14                  In respect of ground 2, the Federal Magistrate concluded that no such claim was raised, either expressly or implicitly, before the Tribunal and it was not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before it, relying on Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.  Further, his Honour concluded that once the Tribunal had found that there was no real chance that the appellant would be persecuted, either for reason of his political opinion or religion, it was not required to proceed to consider whether effective State protection would be available to the appellant.

15                  In respect of ground 3, the Federal Magistrate found that the Tribunal properly applied the statutory scheme in relation to the material before it.  In particular, it had properly concluded it was not satisfied the appellant had met the criterion for a protection visa as required by ss 36(2) and 65 of the Act.

16                  In respect of the concluding comment raised by the appellant in his amended notice of appeal, his Honour found that the Tribunal did assess the risk of future harm when it turned its mind to the question of whether the appellant was at risk of being harmed in India in the foreseeable future.  Further, his Honour found that the Tribunal understood the test that it was required to apply.  It had not failed to properly apply it.

17                  The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

The CONDUCT OF PRESENT APPEAL

18                  On 13 April 2010, the appellant filed a notice of appeal in this Court which alleged that:

1.                  His honors judgment delivered on the 25 March 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

2.                  The Tribunal failed to consider an integer of applicants claim, in failing to consider whether or not a Muslim of IUML in India were at risk of harm from radical Hindu dominated political party, and not able to access effective protection whilst the Tribunal formed the view that the applicants were credible witness.

3.                  My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.

[Errors in original]

19                  At the hearing of the appeal before me on 25 May 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Johnson appeared for the Minister.

20                  The appellant did not make oral submissions and no written submissions were filed.  Instead, he said he relied on his notice of appeal.  Ms Johnson relied upon the outline of written submissions that had been filed on behalf of the Minister.

consideration

21                  Turning to the appellant’s first ground of appeal, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors.  The appellant’s first ground of appeal must therefore be rejected.

22                  The second and third grounds of appeal do not allege any error on the part of the Federal Magistrate.  The Full Court has emphasised that: “an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons”:  see Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10].  Both of these grounds of appeal can therefore be rejected on this basis alone.  However, even if these two grounds of appeal were to be taken to allege that the Federal Magistrate had erred in not detecting these alleged errors in the Tribunal’s decision, I do not consider either has any merits.

23                  The second ground of appeal alleges that the Tribunal failed to consider an “integer” of the appellant’s claim.  This ground is similar to the second ground of appeal raised before the Federal Magistrate (see [11] above), with the addition of the words “whilst the Tribunal formed the view that the applicants were credible witness” (sic).  I agree with the Federal Magistrate’s conclusion in respect of this similar ground before him that no such claim was raised, either expressly or implicitly, before the Tribunal and the Tribunal was not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before it:  see [14] above.  In that event, neither his Honour nor the Tribunal committed any error and this ground of appeal must therefore be rejected.

24                  As to the third ground of appeal, it is almost identical to the first ground of review raised before the Federal Magistrate.  I also agree entirely with his Honour’s reasons for rejecting that ground of review before him:  see [12] above.  That being so, I do not consider either his Honour or the Tribunal committed any error and this third ground of appeal must therefore be rejected.

conclusion

25                  For these reasons, this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         23 July 2010