FEDERAL COURT OF AUSTRALIA

DZAAW v Minister for Immigration and Citizenship [2012] FCA 443

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay to the first respondent costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal): see DZAAW v Minister for Immigration and Citizenship [2011] FMCA 986.

BACKGROUND

2        The appellant is a citizen of India who was born in Jaipur on 25 August 1986. He is a Hindu of the Jat caste. On 19 August 2009, he entered Australia on a temporary business visa. On 29 September 2009, he applied for a protection visa. His parents and siblings still live in India.

3        In support of his claim to be a refugee, the appellant said he had been persecuted because of his Jat caste and because of his political background as a student. He became interested in politics when attending College. He was a good cricketer; and became sport secretary of the student wing of the Bharatija Janata Party (BJP) whilst at college.

4        Specifically, the appellant claimed that he was elected as a College president in 2008, over his opponent, who stood for that position as a member of the National Students Union of India (NSUI), aligned to the Congress Party. His opponent was said to be the son of a government minister in the appellant’s home state of Rajasthan, whom he believed to be a powerful member of the Congress Party. After the election, the appellant says that his unsuccessful opponent “ransacked the college furniture and harassed the innocent [J]at students”. He was subsequently expelled for his conduct after the appellant and other students exposed his behaviour.

5        As a consequence, the appellant claimed he had been attacked on a “number of occasions”, once suffering severe injuries, as well as receiving a threatening phone call from affiliates of his opponent. The appellant claimed to fear persecution from his opponent or his father while the Congress Party remained in power.

6        On 23 August 2010, the delegate of the first respondent refused the application after determining that his claims were fabricated. On 17 September 2010, the appellant applied for review by the Tribunal. On 25 January 2011, the Tribunal conducted a hearing at which the appellant appeared and gave evidence.

7        On 21 June 2011, the Tribunal wrote to the appellant notifying him of its decision and its reasons. The Tribunal was not satisfied that the appellant is a refugee, that is, a person to whom Australia has protection obligations under the Refugees Convention, and so did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth).

THE TRIBUNAL’S REASONS

8        Although the Tribunal had some concerns about the appellant’s evidence it accepted the essential factual matters alleged in support of his application for a protection visa.

9        However, the Tribunal did not accept that there was a real chance the appellant would be persecuted on return to India by his former opponent in the student election or his affiliates by reason of his political opinion. In this regard, it referred to the fact that the appellant resided in his home town (Ladnun) from the time of the attack in December 2007 until after June 2008 and returned there in February 2009 for six months prior to departing for Australia, and that this did not indicate a strong subjective fear of harm. Further, the Tribunal noted the opponent had been unable to locate the appellant while he resided in Jaipur. The Tribunal accepted that the appellant received a threatening phone call in Jaipur in December 2008, but observed that there was no follow-up to the call or any other threats or intimidation after December 2007, despite the appellant returning to live in Ladnun from February to August 2009. It also accepted that he had been attacked by a group of men in December 2007, incurring a broken arm. It also accepted that he had been attacked in the past for reasons of his political opinion.

10        The Tribunal found that the appellant would not be involved in politics if he returned to India. The Tribunal based this finding on the appellant’s evidence at the hearing. It was not a matter of the Tribunal expecting the appellant to alter his behaviour to avoid trouble; he was simply no longer interested in a political career or involved in politics in any way. The Tribunal was of the view that the attacks against the appellant by the opponent and his affiliates took place in the context of student politics almost four years ago. It found that there was not a real chance that the appellant would be seriously harmed on return to India because of his past involvement in student politics and/or for reasons of his political opinion (real or imputed).

11        Regarding Congress Party, the Tribunal noted that there was no evidence to establish that the student opponent was the son of a Rajasthan Congress Party member other than the appellant’s assertions, but was willing to accept he was. However, the Tribunal said that as it had found there was not a real chance that the appellant would be seriously harmed by his former student opponent or his affiliates should he return, there was nothing to suggest that person would use his father’s political role with the Congress Party to harm the appellant, even though it accepted he was a reasonably powerful politician in Rajasthan.

12        Concerning the claim to fear persecution as a member of a particular social group, the Tribunal accepted that “Jat caste members” constitute such a group and that the appellant belonged to that group. However, the Tribunal found on the evidence that the appellant was not targeted by the opponent and his affiliates because of his caste. Nor was the Tribunal satisfied, by reference to country information, that the appellant had any well-founded fear of persecution because of his caste.

13        Finally, although it was “not strictly necessary” to consider internal relocation, the Tribunal considered that it would be reasonable for the appellant to relocate within India.

JUDICIAL REVIEW

14        On 18 July 2011, the appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court on the following four grounds:

1.    The Tribunal did not give to the appellant before the hearing the independent information that it had about politics in India. The Tribunal used this information (RRT decision record pages 7 to 11). This was said to be against s 424A of the Act.

2.    The Tribunal failed to carry out its review function and to exercise its jurisdiction.

Particular of Grounds

(a)    The Tribunal did not consider the appellant who had been under immense and intimidating pressure from the Congress Party and harassed because of his activities and membership with the BJP party.

3.    The Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequence of the claim.

4.    The appellant satisfy the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal decision. The Tribunal had not considered this aspect and therefore committed factual and legal error [sic].

15        With regard to the first ground, the Federal Magistrate noted that the political information in question confirmed much of the appellant’s claims and further that it had been conceded that it was considered important by the Tribunal in corroborating the appellant’s factual claims.

16        However, the Federal Magistrate accepted the contentions of the first respondent that it was unnecessary to provide this information to the appellant for the following reasons:

1.    it was not information that was the reason, or a part of the reason, for affirming the decision that was under review (s 424A(1)(a));

2.    to the extent it was not specifically about the appellant or another person it would have been exempt from the obligation created by s 424A(1) in any event (s 424A(3)(a));

3.    to the extent it was information the appellant gave for the purpose of the application for review it would have been exempt from the obligation created by s 424A(1) in any event (s 424A(3)(b)); and

4.    to the extent it was information the appellant gave in writing during the process that led to the decision that is under review it would have been exempt from the obligation created by s 424A(1) in any event (s 424A(3)(ba)).

17        The Federal Magistrate considered each of these contentions and dismissed ground one of the application on the basis that it had no substance: see [18]-[21]. Firstly, the Federal Magistrate found there was “…nothing in the Tribunal’s reasons to suggest that it used the political information to come to the conclusion that there was not a real chance that the applicant would be seriously harmed by [the Minister] or his affiliates … or for any other Convention reason” ([18]). Therefore it followed that information was not “the reason, or part of the reason” for affirming the decision.

18        Secondly, the Federal Magistrate agreed that, since the political information was not specifically about the appellant or another person, it was exempt pursuant to s 424A(3)(a) of the Act. Further, it appeared to have “no causal link to the conclusion when associated with the country information of which notice was not required”: at [19].

19        Next, the Federal Magistrate found that to the extent information had been given by the appellant himself to the Tribunal, this was exempt pursuant to s 424A(3)(b). To the extent those matters were also contained within the political information, the Federal Magistrate found s 424A(3)(b) would also exclude that information from the obligation under s 424A(1) if that provision applied. Equally, if it had been provided during the process which led to the review – such as the information contained in the appellant’s initial statement – such information was exempt pursuant to s 424A(3)(b)(a): at ([20]).

20        In relation to grounds two and three, which the Federal Magistrate considered traversed the same issues, and taking into account the appellant’s oral submissions, the Federal Magistrate concluded that the appellant was: “… in effect seeking to challenge the Tribunal’s findings of fact, and seek to engage this court in a merits review”. Her Honour found: “The conclusions drawn and findings made by the Tribunal were reasonably open to it on the evidence, and of themselves do not give rise to any jurisdictional error”. Accordingly, grounds two and three of the application failed: at [22]-[23].

21        In response to ground 4, the Federal Magistrate considered the elements relevant to the Convention definition and found that this ground was “plainly” without substance. Her Honour observed that the Tribunal decision “clearly demonstrated” it had considered “… each of the four matters required to be considered when determining whether or not the applicant satisfied a Convention definition.”: [24]-[27].

22        In concluding, the Federal Magistrate also noted the Tribunal went on to find it would be reasonable for the appellant to relocate within India, and further, that this finding had not been challenged.

CONSIDERATION

23        The appellant’s appeal to this Court raises two grounds. They are:

1.    The Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claim and ignoring the aspect of persecution and harm in terms of s 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation (sic).

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

24        As neither of these grounds were expressly relied upon in the Federal Magistrates Court, the appellant now requires the leave of the Court to raise them for the first time on appeal.

25        One matter to which the Court would have regard in this regard is whether these grounds have any merit: see H v Minister for Immigration [2000] FCA 1348 at [6] and SZQHK v Minister for Immigration [2012] FCA 178 and the authorities referred to therein. As the Full Court observed in VAUX v Minister for Immigration [2004] FCAFC 158 at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is not real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

26        With regard to the first ground, to the extent that it refers to s 91R of the Act, the Federal Magistrate addressed the complaint that the Tribunal had failed to address the “four key elements of the Convention definition” as set out in the Tribunal’s decision and found this complaint to be without substance.

27        With regard to the complaint that the Federal Magistrate had failed to consider that the Tribunal acted in a “manifestly unreasonable way” when dealing with the Appellant’s claim, Greenwood J in SZNOE v Minister for Immigration [2012] FCA 96 at [84]-[87] observed that a “… claim that a decision is affected by ‘unreasonableness’ is not materially different from an allegation that a decision is affected by ‘illogicality’ or ‘irrationality’”. His Honour continued at [85]:

For the criticism to go beyond mere emphatic disagreement with a conclusion on the facts open to the Tribunal, the appellant must characterise the suggested error within the legal rubric under which a recognised foundation for a challenge to the decision properly arises.

28        In this matter, the appellant has failed to provide any further particulars in support of his contention. Without more, the Court is not satisfied that the Tribunal’s findings were not open to it for the reasons it gave. In my view, no error has been established on the basis claimed.

29        With regard to the second ground, the Reasons for Judgment given by the Federal Magistrate clearly show that careful consideration was given to each of the appellant’s grounds and to the decision made by the Tribunal. This claim is also without merit.

30        In endeavouring to elicit from the appellant the best case he could put forward, he resorted to the proposition that the Tribunal and the Federal Magistrate had, in essence, reached the wrong conclusion. In my view, having carefully reconsidered all the material, the Federal Magistrate is not shown to have overlooked any material fact, or to have misunderstood or misapplied the law, in determining whether the appellant had demonstrated jurisdictional error on the part of the Tribunal. Nor do I consider that the Tribunal made any such error. It fully considered the material presented to it. It made findings of fact, mostly favourable to the appellant, on that material. It considered whether, in the light of those factual findings, the appellant satisfied the criteria to be eligible for a refugee visa. It decided that he did not, firstly because there was no real chance that he might be persecuted for a Convention reason (either on the basis of his political beliefs or his Jat caste) if he were to return to Rajasthan, and secondly because in any event it was reasonable for him to relocate elsewhere in India if there were such a risk. Those conclusions were reasonably available to the Tribunal. It did not misapply or misunderstand any applicable provision of the Act in reaching those views.

31        Accordingly, I consider that the appeal should be dismissed with costs.

Associate:

Dated:    3 May 2012