FEDERAL COURT OF AUSTRALIA

SZOEN v Minister for Immigration and Citizenship [2010] FCA 1308

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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    This is an appeal from orders made on 9 September 2010 in the Federal Magistrates Court constituted by Lloyd-Jones FM. The appellant had applied to the Refugee Review Tribunal (“the Tribunal”) for review of a decision on 9 October 2009 of a delegate of the respondent Minister for Immigration and Citizenship (“the Minister”) refusing to grant him a Protection (Class XA) visa. The learned Federal Magistrate distilled from the appellant’s written statement in support of his visa application the following four claims;

a)    On 20 September 2008 he was attacked by Bajrang Dal (Hindu) People;

b)    On 5 October 2008, there was a large altercation between Muslims and Hindus. Although he was at work at the time, he was arrested, accused of being involved in the altercation and forced to report to the police station everyday;

c)    In February 2009, he was drinking tea in the Jumbo Hotel when he was attacked by Shiv Sena and Bajrang Dal People; and

d)    In April 2009 his wife went to the market and was threatened.

2    As his Honour noted, the appellant, at an interview with the Minister’s delegate, expanded his claims to include an assertion that “if he returned to India he would be at risk of harm from the Indian police as he did not fulfil his bail conditions after being released from detention in September 2008. He claims he was detained due to being caught up in a round-up of riot participants in Mumbai.”

3    The appellant’s application to the Federal Magistrates Court invoked the following grounds;

1.    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 to fully compliance with s.424A as decided by the majority judge of the High Court in SAAP.

2.    The Tribunal failed to consider an integer of my claim, in failing to consider whether or not a liberal Muslim by India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal is satisfied that my home had been destroyed in 1992.

4    In its reasons, the Tribunal set out in full a lengthy written statement by the appellant which he had composed himself in English. Despite his obvious difficulties in expressing himself in English, the statement conveyed the essence of the appellant’s claim to refugee status. It disclosed that, since his childhood, there had been long-standing animosities between his own Muslim community and the Hindu majority in the area of Mumbai where he lived and had grown up. He identified as among the chief focal points of Hindu power and influence, the “RSS and Bajrang Dal and Shiv Sena.” After earlier incidents in which, he claimed, members of those groups had called for Muslims to “go back to Pakistan” and “free India for the Hindus”, he instanced a particular event on 20 September 2008 when he had been assaulted by Bajrang Dal supporters and his little finger had been broken. Later, on 5 October 2008, he claimed, an altercation had occurred in connection with the Durga Pooja festival in which Bajrang Dal and Shiv Sena members had participated. Although, at the time, he had been working at a film studio, the applicant said, he was falsely charged with involvement with this latter incident and detained by the police for one week before being released on bail.

5    After his release on bail, the appellant claimed, he was required to enter into a “Tadipay bond” which meant that if anybody complained about him he would be expelled from Mumbai. As well, he was required to report every day to the police station where he had to “stand for five hours.” As a result, he lost his job in January 2009. In February 2009, he said, he was assaulted by five Hindus while drinking tea at the Jumbo Hotel. His complaints to the police were disregarded and he was left “very scared of Shiv Sena and Bajrang Dal people.”

6    Subsequently, on the appellant’s account, his wife was too frightened to send their elder daughter to school and, in April 2009, she was threatened by five people, one of whom showed her a knife and told that her they would kill her husband and child and rape her. That incident caused her to collapse in the street and become so ill that she was admitted to hospital for three days. As a result, the appellant claimed, he and his family came to Australia with financial assistance from a friend but, when their younger daughter became ill, it was decided that his wife and the children should return to India to his wife’s village which they did on 12 July 2009.

7    In support of his claims, the appellant furnished a collection of written statements which were said to have been provided to the Chief Executive Magistrate [for the Santa Cruz Division, Mumbai] in relation to a complaint that the appellant and eight other persons had been guilty of unlawful assembly, obstructing the path of the complainant, abusing and assaulting him and members of his family with bamboo sticks and molesting two of his sisters.

8    It appears that the appellant supplemented that witness statement and attachments by oral evidence before the Tribunal. The Tribunal put to him what it regarded as discrepancies or inconsistencies between his written statement and his later oral evidence. The Tribunal also remarked to the appellant that it found it difficult to understand why the police showed any interest in him in relation to the Hindu-Muslim unrest in October 2008 when he had been at work at the time, was 35 years old and married with children. As well, the Tribunal pointed out that it had been unable to find, in country information which it had examined, many references to incidents between Hindus and Muslims in Maharashta or anything to support a finding that persecution of Muslims had occurred at the level claimed by the appellant. The Tribunal also questioned the appellant about an entry in his passport which showed that he had entered South Africa on 19 October 2008 and remained there until 13 November 2008, a fact which he had not previously disclosed in applying for refugee status.

9    In addition, the Tribunal drew the attention of the appellant’s interpreter to a “First Information Report” which the appellant had supplied in support of his application. That report was dated 29 November 2008 and showed that the appellant had lodged a complaint against the same man who had complained against the appellant and eight others as described at [7] of these reasons. The appellant’s complaint concerned a fight between the other man and himself which allegedly occurred on 28 November 2008 while the appellant “was having tea at JUMBO”. The Tribunal, in its reasons, said of that “First Information Report”;

The Tribunal then asked the interpreter what was the date of the applicant’s ‘First Information Report in Non-Cognizable Offence’ document which the applicant had submitted. She stated that it was her understanding it was prepared on 28 November 2008. The applicant stated the date was 29 November. The Tribunal put to him that he had stated at hearing that the date of the event was 29 September 2008, yet this report was dated 28 November 2008. He stated it was his mistake.

10    Under the heading “Country Information”, the Tribunal summarised facts which it had gleaned from the International Religious Freedom Report 2009 of the US Department of State which indicated that Muslims constituted the largest religious minority in the Indian population comprising 13.4%, as against the Hindu majority amounting to 80.5% of the population. The Tribunal then set out extracts from the same report which, it considered at [39] of its reasons, allowed it to conclude;

… The country information before the Tribunal does not suggest to it that Muslims are persecuted in Mumbai. Neither the BJP or the RSS holds power in Maharashtra. Whilst there were some reports of Hindu-Muslim clashes in that state, these are intermittent and appear to have occurred when there was an actual or perceived insult or religious threat. The reports do not suggest that Muslims are harassed simply because they are Muslim. Further, from the Independent Country Information, India is a long-standing democracy, it is governed essentially by the rule of law, it has a tradition of secular governance, the judiciary is independent and the perpetrators of religious violence are held responsible, there is a vibrant civil society with many vigorous, independent human rights organizations, there is a free press, and the states and the central government provide for and are committed to and are held accountable for the enforcement of law and order. …

11    In an earlier part of its “Findings and Reasons” at [36] the Tribunal drew attention to what it regarded as inconsistencies between the appellant’s written statement and the evidence which he had given at the hearing before the Tribunal. It then went on, in the same paragraph, to observe;

…More importantly however, the applicant was unable to provide any plausible explanation as to why Shiv Sena and Bajrang Dal would attempt to provoke he and his wife and continue to do so or why the police would suspect that he was party to an altercation and arrest him some hours later when he was at work at the time. Be that as it may, the Tribunal is aware that such responses may not necessarily mean that the applicant is not telling the truth. However in this case, the Tribunal can find no country reports that suggests that there was such a altercation between Muslims and Hindus in the Applicant’s area during the Durga Pooja festival on the date stated. The country information before the Tribunal also does not suggest to it that Muslims are persecuted in the Applicant's area and that whilst there were some reports of Hindu-Muslim clashes in Maharashtra, these are intermittent and appear to have occurred when there was an actual or perceived insult or religious threat. In addition, the applicant was unable to provide a plausible explanation as to why the police would initially suspect and continue to suspect him in such an altercation given that he was working at the time. The applicant has stated that his employer was not willing to be involved, however the Tribunal does not accept this is plausible given that the applicant’s alleged reporting to the police station severely affected his ability to work and even go overseas. The Tribunal has considered the statements that the applicant has provided to the Tribunal and which were allegedly provided to the chief executive magistrate in support of a ‘show cause notice’, however given the Tribunal’s overall concerns that the applicant’s story has continued to change and that there are no country reports that suggest that there was a large altercation between Muslims and Hindus during the Durga Pooja festival, these statements are not persuasive. In reaching this conclusion the Tribunal also notes that when the document headed ‘non-cognizable offence report’ was interpreted at hearing, it was dated a number of months after the applicant was allegedly assaulted at the hotel. The applicant subsequently stated that this was his mistake, that the date in the document was correct however the Tribunal remains unconvinced that the applicant was unable to remember that this event occurred after he was detained by the police and not before. This and the fact that this event was not mentioned in his statement leads the Tribunal to place no weight on this document.

12    The Tribunal then went on to indicate why it declined to make most of the findings which had been urged on it by the appellant. It recited, at [37] and [38] of its reasons:

37.    The applicant was also unable to provide an explanation as to why Shiv Sena or Bajrang Dal would continue to pursue him and his wife.

38.    In summary, whilst the Tribunal accepts the applicant’s house may have been destroyed in 1992, it is not satisfied the applicant or his wife suffered any of the alleged harm in 2008 or 2009. It is not satisfied that he has been accosted by Shiv Sena or Bajrang Dal at the hotel, that he was targeted by them on his way home, that he was implicated in an altercation in October 2008, that he was arrested and charged and released after one week, that he and his wife received threatening phone calls, that his wife was threatened outside the police station and threatened when she went to market or that he had to report to the police and lost his lost [sic. scil job] as a result.

13    Those negative findings and an expression of satisfaction that the appellant would enjoy “the meaningful protection of the Indian Police and other security institutions in Mumbai” led the Tribunal to conclude, at [40] and [41] of its reasons:

40.    The Tribunal is therefore not satisfied the applicant faces a real chance of serious harm in the reasonably foreseeable future. The Tribunal is not satisfied he has a well founded fear of persecution for a Convention reason. The Tribunal is not satisfied he is a refugee.

41.    The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

14    The appellant in his Notice of Appeal to this Court relied on two grounds of appeal, the first of which was;

The Hon. FM erred in not finding that the Tribunal committed jurisdictional error by failing to address the applicant claims in the way they were made.

The following particulars were appended to that ground of appeal:

(a)    The applicant stated in his protection visa application that he was attacked by the Hindu extremist groups Bajrang Dal and Shiv Sena.

(b)    He was detained and tortured in the name of interrogation by the police.

(c)    The Tribunal did not consider the way he claimed that he was persecution by Hindu groups and government authority.

The second, un-particularised, ground of appeal to this Court was;

The Tribunal did not use the country information as specific however the general information gathered by the Tribunal considered to weight against the applicant case in the final out come.

15    By directions given in relation to the appeal, Deputy District Registrar Morgan, on 30 September 2010, ordered, amongst other things, that:

8.    The appellant file and serve written submissions no later than five (5) clear working days before the hearing date unless otherwise directed.

16    For some reason, which has not been explained, the appellant has not complied with that direction. On the hearing of the appeal the appellant, who appeared in person and was assisted by an interpreter, confined himself to contending that the Tribunal had not properly considered the evidence and that the country information to which it had referred does not descend to small incidents of the kind on which the appellant had relied to establish that he would be at risk of persecution if he were to return to India. The appellant further contended that the outline of submissions filed on behalf of the Minister had not canvassed all of the facts and he urged this Court to “please consider them all again.”

17    In his reasons for dismissing the appellant’s application for review, the learned Federal Magistrate noted, at [9];

The Applicant relies on two very broad, un-particularised grounds of review. The Applicant did not provide any written submissions prior to the hearing and declined to make any oral submissions when invited to do so at the hearing. These grounds are, in effect, bare assertions of jurisdictional error. In the absence of particularised grounds or oral or written submissions the Applicant has done little to identify the basis on which he seeks judicial review of the Tribunal decision.

18    Lloyd-Jones FM then proceeded to examine the appellant’s first claim articulated in sub-paragraph 1 of his grounds of appeal to the Federal Magistrates Court which has been set out at [3] above. His Honour considered that none of the information relied on by the Tribunal in its reasons attracted the application of s 424A of the Migration Act 1958 (Cth) (“the Act”) because each element of the information fell within one or other of the exceptions carved out by s 424A(3). Additionally, his Honour held that the Tribunal’s “subjective appraisal, thought processes and determination in relation to the matter before it” was not “information” for the purposes of s 424A(1) of the Act; see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at [18].

19    As will be apparent from the grounds of appeal which I have reproduced at [14] above, the appellant’s appeal to this Court does not rely on the rejection by the Federal Magistrates Court of the attack on the Tribunal’s decision which invoked s 424A of the Act. Further consideration of that issue is therefore unnecessary.

20    As the learned Federal Magistrate noted at [17] of his reasons in respect of the appellant’s second ground for seeking review of the Tribunal’s decision;

The second ground of review claims that the Tribunal failed to consider an integer of the Applicant’s claim namely that a liberal Muslim in India was at risk of harm from radical Hindus and was unable to assess [sic. scil. access] effective protection.

21    It was contended in written submissions filed in the appeal on behalf of the Minister that neither of the grounds of appeal reproduced at [12] above was raised at first instance in the Federal Magistrates Court. Accordingly, the Minister submitted, the appellant required leave to rely on those grounds in the present appeal and leave should be refused because neither ground has any reasonable prospect of success; see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, at [166].

22    I am disposed, in light of the appellant’s limited grasp of English and the fact that he is not represented by a legal practitioner, to regard the grounds in his notice of appeal to this Court as restating, in different terms, the second ground which the learned Federal Magistrate identified as noted at [18] above. In any event, as the appellant has not elaborated his present grounds of appeal by oral or written submissions on the hearing before me, consideration of whether those grounds have any reasonable prospect of success must coincide with the determination of the appeal.

23    Contrary to the assertion in the first ground of appeal to this Court, I have been unable to discern any jurisdictional error in the way in which the Tribunal addressed the appellant’s claims to fear persecution in India by Hindu extremists and Government authorities. Rather, the Tribunal accepted only that the appellant’s house had been destroyed in 1992 but was unable to find, on the balance of probabilities, that any of the alleged incidents of persecution of the appellant or his wife in 2008 and 2009 actually occurred. An affirmative finding on at least some of those allegations was necessary to impute to the appellant a present and continuing fear of persecution. The remarks of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 can be paraphrased to apply with equal force to the findings of the Tribunal in the present case. His Honour there said, at 423 [67];

… However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.

24    The appellant’s second ground of appeal is related to his first in that it seems to ascribe to the Tribunal a reliance on “general” country information as militating against acceptance of the appellant’s account of the specific incidents of persecution which he claimed he and his wife had endured. It may be, as he contended on the hearing of the appeal, that the incidents on which he relied had been too “small” or commonplace to attract the attention of the national media in India or to be recorded in reports like that issued in 2009 by the US Department of State. However, it is open to the Tribunal to use such country information as is available to it and to ascribe to it such weight as it thinks fit; see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, at [11]. The fact that such country information as the Tribunal chooses to accept leads it to reject the oral or documentary evidence adduced on behalf of an applicant, including other country information, is simply incidental to the fact-finding function reposed in the Tribunal and does not signify jurisdictional error.

Conclusion

25    For the reasons which I have endeavoured to explain, I am not persuaded that the Tribunal has been guilty of jurisdictional error of any of the kinds asserted by the appellant. It follows that there has been no appealable error in the reasoning of the Federal Magistrates Court and the appeal must be dismissed with costs.

Associate:

Dated:    25 November 2010