FEDERAL COURT OF AUSTRALIA

SZLUW v Minister for Immigration and Citizenship [2010] FCA 804

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the first respondent’s 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

1                     The appellant appeals from a judgment of the Federal Magistrates Court delivered on 13 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 June 2009.  The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.

background

2                     The appellant is a citizen of India who arrived in Australia on 16 April 2007.  On 25 May 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister refused the application for a protection visa on 6 August 2007.  On 29 August 2007 the appellant applied to the Tribunal, differently constituted, for a review of that decision.  On 19 November 2007 the Tribunal affirmed the decision of the delegate.  On 15 August 2008 the Federal Magistrates Court made orders by consent quashing the decision of the Tribunal and remitting the matter to be determined according to law.

3                     On 19 November 2008 the Tribunal, again differently constituted, affirmed the delegate’s decision.  On 11 March 2009 the Federal Magistrates Court made orders by consent quashing the decision and remitting the matter to the Tribunal to be determined according to law.

4                     The appellant claims protection on the basis of his political opinion and religion.

the tribunal’s decision

5                     The decision under review is the third decision of the Tribunal.  The Tribunal considered the material placed before the two earlier, differently constituted Tribunals by the appellant.  Part of this consideration involved listening to the audio recording of the hearing conducted by the first Tribunal.  The Tribunal then conducted a hearing on 1 May 2009.  Following that hearing the Tribunal invited the appellant to a further hearing, which was held on 3 June 2009.  The record of the Tribunal’s decision shows that at the hearing on 3 June 2009 the Tribunal informed the appellant that, after having considered what the appellant had told the Tribunal at the hearing on 1 May 2009, and after considering those matters in light of the matters put before the first Tribunal and the second Tribunal, the Tribunal had formed the preliminary view that the appellant’s claims were not to be believed and that it was giving the appellant an opportunity to hear what the Tribunal’s particular concerns were in relation to his credibility so that he might have an opportunity to deal with those concerns.  The Tribunal’s decision records the matters put to the appellant and his responses.

6                     In his original application for a protection visa the appellant claimed to have been a life member of the Tamilnadu Muslim Munnetra Kazhagam (the TMMK) and a member of the Marumalarchi Dravida Munnetra Kazhagam (the MDMK), and to have previously stood successfully for election as a candidate in local elections for another political party, the Dravida Munnetra Kazhagam (the DMK).  He gave an account of leaving the DMK to become involved with the MDMK and subsequently fleeing to Brunei because of attacks from elements within the DMK following elections in 2001 in which he undertook election work.  He then said that the MDMK came to a compromise with the DMK, as a result of which he returned to Chennai.  However, according to the appellant, problems recommenced with the DMK and, with help from other elements, including those within the Rashtriya Swayamsevak Sangh (the RSS), the DMK “started giving problems and taking vindictive action against us”.

7                     The Tribunal’s decision records the matters that were placed before the first and second Tribunals, as well as the Tribunal, by the appellant in respect of his political affiliations and activities in India in the period from 1990.  The decision record shows that the appellant gave what seems to have been a very confusing account of those affiliations and activities.  It is manifest from the Tribunal’s decision that it considered that there were a number of significant inconsistencies and apparent contradictions in the facts that the appellant had advanced from time to time in support of his application for a protection visa. 

8                     At the Tribunal hearings the appellant also supplemented the facts set out in his protection visa application to include claims about physical attacks and threats made against him, as well as an attack on his father’s shop.  The Tribunal noted inconsistencies and contradictions in relation to the appellant’s various accounts of these matters at the Tribunal hearings, as well as the fact that, at the first Tribunal hearing and in his visa application, the appellant had not mentioned certain specific claimed incidents that the Tribunal considered to be very serious in terms of the nature of the refugee claim the appellant was making.  The Tribunal also noted that the appellant’s travel entries in his passports were not consistent with the evidence he had given. 

9                     The Tribunal found that the appellant was not a credible witness.  It rejected a number of claimed facts and events relating to attacks and threats against him and others, as being implausible or as having been made up by the appellant as he had gone along, or as being vague and lacking in detail.  It gave reasons for these findings. 

10                  The Tribunal also noted that the appellant had claimed that threats had been made that his daughter would be abducted if he were to contest elections.  On being asked why he had not mentioned this fact at the first Tribunal hearing, the appellant said that he had mentioned this fact but that the first Tribunal had simply not recorded it in its decision record.  However, the Tribunal noted that it had listened carefully to the whole of the audio recording of the hearing before the first Tribunal and at no time had the appellant mentioned receiving threats that his daughter would be abducted.

11                  In [102] of its reasons the Tribunal made the following findings: 

Finally, the Tribunal does not accept the applicant’s story as to why the DMK or its supporters would persecute him were he to return to India.  Even if the Tribunal were to accept, which it does not, that the applicant was persecuted by the DMK following the split from it and the formation of the MDMK, he has, on his story, since stood successfully for election for the DMK.  In these circumstances, his suggestion that, unlike his father who was a long serving member of the DMK and who has apparently managed to live peacefully in Chennai, the applicant would be regarded by the DMK as a threat because of his youth is not plausible.

12                  These findings stand as a complete rejection of critical aspects of the appellant’s claim, as he had put it, that he had suffered or would suffer persecution on the basis of his political opinions were he to return to India.

13                  The Tribunal then recorded that, given there were good reasons to reject the appellant’s evidence on credibility grounds, it gave no weight to the copies supplied to the Tribunal of what the appellant alleged were his membership cards of the TMMK and the MDMK.  I do not read the Tribunal’s reasons as attaching significance to the fact that the documents were copies.  The Tribunal earlier recorded that it followed from its rejection of the appellant’s evidence on credibility grounds that it did not accept that the appellant was a member of the TMMK or the MDMK. 

14                  The Tribunal also considered whether the appellant would face persecution if he returned to India on the basis of his religion. The Tribunal did not accept the appellant’s claim.  It found that although there were occasional clashes between Muslims and Hindus, there was no suggestion that any harm caused to Muslims had an official quality or was unable to be controlled by the authorities.  Further, the Tribunal noted that there was no country information suggesting that Muslims are persecuted in Tamil Nadu. 

15                  Importantly, the Tribunal also considered that, in any event, the appellant could reasonably relocate and access state protection elsewhere in India.  In that connection the Tribunal did not consider that the objections put to the Tribunal against relocation were matters that made it unreasonable or impracticable for the appellant to seek refuge in Kerala.  Pages 15-16 of the Tribunal’s decision record show that the Tribunal gave consideration to objections made by the appellant in relation to relocation as that matter concerned his claim for protection based on his political opinions and religion.

16                  The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for any Convention related reason, and affirmed the decision under review. 

federal magistrates court

17                  By application filed in the Federal Magistrates Court on 15 July 2009 the appellant sought judicial review of the Tribunal’s decision.

18                  In an amended application filed on 28 September 2009, the appellant raised the following grounds of review:

1.                  The applicant submits that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error under section 424A of the Migration Act 1958 (the Act) that the Tribunal did not give the applicant particulars of the information which is the reason or part of the reason to reject his claim.

Particulars:

(i)        The Tribunal does not accept that he is a member of the TMMK or the MDMK.

(ii)                Nor does the Tribunal accept that he stood for the DMK in local government election in 1998.

(iii)       The DMK had been responsible for the death of the friend of his father.

(iv)              The information that only four years later the applicant would have chosen to stand for election for the DMK.

(v)        The information about the applicant’s hiding until his departure to Brunei in 2001.

(v)                A successful claim for a protection visa would depend on the claims made in his protection visa application.

2.         The applicant submits that the Tribunal made a jurisdictional error that the Tribunal did not consider the significant reason for the persecution, the discriminatory conduct, the financial hard ship [sic] and the significant economic hardship.

Particulars:

The Tribunal appreciates that amongst some Muslims job reservations for the Muslim community remains an issue in the State. However, the lack of Muslim job reservations does not amount to serious harm within the meaning of s. 91R(1)(b) and s. 91R(2), nor does it involve systematic and discriminatory conduct within the meaning of s. 91R(1)(c)…

19                  In respect of ground 1, the Federal Magistrates Court found that the Tribunal was not required under s 424A(1) of the Migration Act 1958 (Cth) (the Act) to provide the appellant with a running commentary of its thought processes or some form of preliminary indication of its proposed findings so that the appellant could comment.

20                  In respect of ground 2, the Federal Magistrates Court noted that the particulars listed by the appellant were the findings that the Tribunal had made.  The Federal Magistrates Court stated that this ground of review appeared to be merely a request for impermissible merits review, as there was no suggestion that the Tribunal made the findings without evidence or that it was a claim that was not considered by it.

21                  The appellant also raised in oral submissions a complaint that the Tribunal had not carried out its own responsibilities properly when it indicated in its decision record that it could not understand why the matter had been remitted for reconsideration pursuant to the orders made by consent in the Federal Magistrates Court on 11 March 2009.  In this respect, the Federal Magistrates Court found that the Tribunal made a very fair attempt to ensure that all issues dispositive to the review were considered by it and that there was no error by the Tribunal in this regard.

22                  In the course of its decision the Federal Magistrates Court noted that the Tribunal had given no weight to the copies of what were alleged to be the appellant’s membership cards of the TMMK and MDMK.  Although it expressed some concern about that matter, and thought the matter to be finely balanced, the Federal Magistrates Court, after consideration, was not prepared to find that the Tribunal’s decision to give no weight to these documents constituted jurisdictional error.

23                  Having found no jurisdictional error in the Tribunal’s decision, and after noting, in any event, the Tribunal’s additional finding concerning the appellant’s ability to relocate within India, the Federal Magistrates Court dismissed the application.

appeal to this court

24                  On 2 December 2009 the appellant filed a notice of appeal in this Court.  The notice raises the following as grounds of appeal:

1.         The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error that the Tribunal did not give weight to the copies supplied to the Tribunal regarding the applicant’s membership of the political parties. The Court wrongly considered the Tribunal’s findings in this regard when the Tribunal did not verify the applicant’s membership and it did not test his membership at the hearing how it could make findings regarding membership.

2.         The Federal Magistrates Court erred in not considering that the Tribunal’s decision was not made properly that the Tribunal mentioned at the beginning of its decision that the basis of the remittal to the Tribunal was not entirely clear and the Tribunal did not try to make clear ‘the basis of the remittal’ until and unless the Tribunal is clear regarding the basis of the remittal how the Tribunal’s decision would be fair. The Court below did not consider it.

3.         The Federal Magistrates Court did not consider that the Tribunal made a jurisdictional error that the applicant was not given an opportunity to comment on adverse information which are the reason or part of the reason to reject his claim for protection.

submissions of the appellant

25                  The appellant was self-represented and assisted by an interpreter.  He had filed written submissions.  He did not seek to advance any oral arguments when invited to do so. 

26                  Ground 3 of the notice of appeal was drawn to his attention and he was invited to identify the adverse information to which this ground referred.  In response the appellant said: 

They did not ask me for the original of my membership card.  I gave a photocopy of the membership card and they accepted it.  Then when they gave the decision they said that the photocopy would be a forgery.  If they had mentioned that to me earlier then I would have produced the original to them.

27                  He said that this was the same matter referred to in ground 1 of the notice of appeal.

28                  The appellant’s written submissions did not coincide with the grounds in the notice of appeal.  While some submissions were directed to the specified grounds, other submissions travelled well beyond the grounds (and, indeed, the grounds of review in the amended application to the Federal Magistrates Court) to include complaints that the appellant should have been informed by the Tribunal of intended adverse findings and given an opportunity to verify some of the information he had placed before the Tribunal.  Other parts of the written submissions sought to challenge certain findings of fact made by the Tribunal.

CONSIDERATION

The first ground of appeal

29                  The matter raised in the first ground of the notice of appeal is not a matter that was raised in the grounds of review in the appellant’s amended application filed in the Federal Magistrates Court.  Nonetheless, it is a matter that was considered by the Federal Magistrates Court. 

30                  In my view the Federal Magistrates Court was correct to conclude that that matter had not disclosed jurisdictional error on the part of the Tribunal.  The appellant had advanced before the Tribunal certain events concerning particular political activities in which he said he had been engaged and the persecution he said he had suffered as a consequence of those activities.  After considering the appellant’s evidence about these alleged events and forming the preliminary view that his evidence was not to be believed, the Tribunal invited the appellant to hear its concerns and to respond to them.  After hearing the appellant, the Tribunal remained of the view that the appellant’s evidence about these alleged events was not credible (for the reasons it gave) and rejected it.  The Tribunal did not ignore the existence of what were said to be copies of the membership cards.  But it is plain that the Tribunal simply did not believe the appellant’s account of his political activities or his account of the attacks or threats made as a consequence of those alleged activities.  It was a matter for the Tribunal to determine what weight, if any, those documents should then be given having regard to the Tribunal’s rejection of the particular facts advanced by the appellant as justifying his claim to have a well-founded fear of persecution because of his political opinions: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at [44]-[45]. 

31                  I do not share the concern expressed by the Federal Magistrates Court in relation to this aspect of the Tribunal’s decision.  As I have noted, the Tribunal’s findings in [102] of its reasons stand as a complete rejection of critical aspects of the appellant’s claims, as he had put them, that he had suffered or would suffer persecution on the basis of his political opinions were he to return to India.   It was open to the Tribunal to conclude that there were good reasons to reject the appellant’s evidence on credibility grounds, and then decide to give no weight to the copies of the membership cards, in light of those findings: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] FCA 20; (2003) 198 ALR 59 per McHugh and Gummow JJ at [49].

32                  Moreover, it was not incumbent on the Tribunal to seek to verify the appellant’s membership or to “test” it.  Although the Tribunal has an inquisitorial function, it has no general duty to undertake its own inquiries in addition to information provided to it by an applicant:  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1].

33                  In light of the particular findings of fact made by the Tribunal, I am not persuaded that the decision, in those circumstances, to give the documents no weight manifests jurisdictional error on the part of the Tribunal.  No error has been shown in the corresponding conclusion of the Federal Magistrates Court.

The second ground of appeal

34                  The matter raised in the second ground of the notice of appeal is not a matter that was raised in the grounds of review in the appellant’s amended application filed in the Federal Magistrates Court.  Nonetheless, it is a matter that was considered by the Federal Magistrates Court (contrary to what is said in the second ground of appeal) in light of what the appellant had advanced in his written and oral submissions in that court. 

35                  The gravamen of the appellant’s submission appears to be that, because the Tribunal had queried the basis for the remittal, it did not understand what its function was then to be, with the consequence that its decision could not be fair.

36                  The Federal Magistrates Court (at [15]) dealt with the matter in this way: 

He seemed to be of the view that because the Tribunal had indicated that it could not understand why the remittal had taken place that it did not carry out its own responsibilities properly.  I do not think that the one follows from the other, especially given the remarks made at [7] … that I previously extracted.  To my mind, this Tribunal made a very fair attempt to ensure that all issues dispositive to this review were considered by it.  So it included those issues that were before T1 and T2.  It went further, having come to some preliminary views, it actually held a hearing with the applicant to give him an opportunity to rebut them.  The applicant attempted to do so but was not successful.  This is purely a matter for the decision of the Tribunal and not for this Court.

37                  In [7] of its decision record, the Tribunal stated that it had attempted in the hearings conducted by it to give the appellant the opportunity to address not only the issues arising before it but also the issues that arose before the first and second Tribunals.

38                  I agree with the assessment by the Federal Magistrates Court.  No error is disclosed.

The third ground of appeal

39                  As I have noted above, at the hearing of the appeal the appellant treated the matter raised in the third ground of appeal as being the same as raised in the first ground of appeal.  It seems to me, however, that the third ground of appeal raises a separate matter, albeit one relating (at least in part) to the documents the subject of the first ground of appeal.  As a matter of substance, the third ground of appeal seems to reflect the first ground of review in the amended application filed in the Federal Magistrates Court.

40                  To the extent that this ground concerns the documents the subject of the first ground of appeal, the appellant’s oral elaboration of this ground, as quoted above, proceeds on a false basis.  The Tribunal made no finding that the documents were forged copies.  Indeed, as I have already noted, I do not read the Tribunal’s decision as having attached any significance to the fact that the documents were copies, although attention was drawn to the fact that the documents were copies in submissions both in this Court and in the Federal Magistrates Court.

41                  In so far as the third ground of appeal seeks, more generally, to challenge the correctness of the decision by the Federal Magistrates Court with respect to the first ground of review of the amended application, in my view no error is disclosed.  The particulars provided in relation to that ground of review either relate to ultimate findings of fact made by the Tribunal after considering all the evidence placed before the Tribunal by the appellant, including his own explanations given in response to the concerns raised by the Tribunal as to the appellant’s credit in the hearing conducted on 3 June 2009, or are aspects of its reasoning.  There was no obligation on the part of the Tribunal under s 424A of the Act to rehearse  these matters with the appellant.  The word “information” in s 424A(1)(a) does not encompass the Tribunal’s subjective appraisals, thought processes or determinations:  VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].

Other matters raised by the appellant

42                  I have noted that the appellant’s written submissions travelled beyond the grounds of appeal and, in certain respects, the grounds of review in his amended application.  The Minister nevertheless sought to deal with the substance of these additional matters and I propose to do likewise.

43                  The first additional matter related to the findings of the Tribunal in [99] and [100] of its reasons.  The findings in [99] related to the appellant’s claims that threats had been made to abduct his daughter.  The findings in [100] related to claims of physical attacks upon the appellant.  I have already noted the appellant’s claims in this regard and the Tribunal’s rejection of them.  The appellant submits that the Tribunal erred in failing to give him an opportunity to discuss these findings with him.  As I have said, there was no obligation on the part of the Tribunal to rehearse its ultimate findings of fact with the appellant.  I also note, however, that the claim of threatened abduction and the claims of physical attacks on the appellant were specifically raised with him by the Tribunal at the hearing on 3 June 2009 as matters relating to the Tribunal’s concerns about the appellant’s credit.  The Tribunal gave the appellant the opportunity to comment on its concerns in relation to these claims and the appellant availed himself of that opportunity.  There is no substance to the appellant’s assertion that he was denied an opportunity to comment. 

44                   The second additional matter related to findings made by the Tribunal relating to the persecution of Muslims in India.  These submissions were directed to challenging the findings of fact that the Tribunal made based on independent country information.  The Tribunal’s findings in this regard disclose no error in its decision-making process.  The appellant’s submissions in this regard amounted to no more than a plea for a review of the merits of the Tribunal’s findings.

45                  Significantly, neither the grounds of appeal nor the grounds of review in the amended application filed in the Federal Magistrates Court challenge the correctness of the Tribunal’s conclusion that, quite apart from its rejection of the factual basis for his claims, the appellant and his family could, in any event, reasonably access protection elsewhere in India.

DISPOSITION

46                  No error has been shown in the decision of the Federal Magistrates Court and no jurisdictional error has otherwise been shown in the decision of the Tribunal.  The appeal should be dismissed with costs.  

Associate:

Dated:         30 July 2010