FEDERAL COURT OF AUSTRALIA

SZQRD v Minister for Immigration & Citizenship [2012] FCA 874

THE COURT ORDERS THAT:

1.    The first appellant is appointed as the litigation representative of each of the third and fourth appellants pursuant to Rule 9.63 of the Federal Court Rules 2011 with effect from 15 March 2012.

2.    The requirements of Rule 9.63(2) and (3) are dispensed with.

3.    The appeal is dismissed.

4.    The first and second appellants pay the first respondent’s costs.

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 a Federal Magistrate (Raphael FM) delivered on 24 February 2012 dismissing the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 August 2011.

2    The first appellant appeared for himself and the third and fourth appellants at the hearing of the appeal. He did not appear on behalf of the second appellant. There was no appearance for the second appellant at the hearing of the appeal.

3    The first respondent sought an order appointing the first appellant as litigation representative of the third and fourth appellants (who are minors) pursuant to Rule 9.63 of the Federal Court Rules. I propose to make that order which will operate with effect from the date of the commencement of the appeal, viz 15 March 2012. I will also make an order dispensing with the requirements of Rule 9.63(2) and (3).

BACKGROUND FACTS AND THE claims before THE TRIBUNAL

4    The appellants are citizens of India who arrived in Australia on 25 December 2010. On 4 February 2011 the first appellant, the husband of the second appellant, applied for a protection visa. In his application the first appellant nominated his wife and their son and daughter, who are the third and fourth appellants respectively, as family members.

5    The Tribunal’s reasons for decision give a detailed account of the first appellant’s claims. According to his original application the first appellant was born in 1967 in Gujarat, India into a traditional Muslim family. In his application he stated that he was a Sunni Muslim. He married the second appellant in July 1995 in Gujarat. His first child was born in 1996 and his second child in 2001. Both the children were given Hindu names.

6    In his application, the first appellant gave an account of various incidents that occurred from 1974 to 1976 and again from 1984 to 1994. During these periods there were communal riots in Gujarat, and the first appellant and his family had to move out of Gujarat into a safer region. His uncle was killed during one of the communal riots and the first appellant’s studies at high school and college were disrupted. The first appellant claimed that in July or August 1987, following his election to the position of General Secretary to the student wing of the Congress Party, he was “kidnapped” by members of the BJP and its student supporters, and threatened with physical harm if he did not give up his position at the college. The first appellant claimed that, as a result of the threats made by the student wing of the BJP, he was forced to leave college and cease his studies for about four years.

7    During that four year period he supported the Congress Party and was employed by the Ahmedabad Municipal Corporation as a sanitary inspector. He claimed that he worked in that position until 1994 when he left his job due to animosity and hatred directed at him as a result of the demolition of the Babri Masjid mosque and his religious and political beliefs. He claimed that BJP members tried to kill him on a number of occasions, and that they also accused him of involvement in Pakistani-backed Muslim organisations and the riots in Ahmedabad. He claimed that he was taken by the police to a police station and tortured but later released without charge.

8    The first appellant claimed that in August 1994 he joined the Development Credit Bank (DCB) as a junior officer where he worked until September 2008. He said that he reported a number of employees for fraud and, after an internal investigation, they were sacked. He said that after they were sacked they began to threaten him on the telephone, and that they approached the BJP and told its local leader that they had been sacked from their positions because of their membership of that party. He said that following intervention by the local leader of the BJP, a manager of the DCB advised the first appellant to resign his job and move away. The first appellant left that job in September 2008 and then, after obtaining a tourist visa, travelled to Australia.

9    The first appellant told the Tribunal he returned to India from Australia after he received a telephone call from his wife in which he was told that someone had threatened to kidnap their children from school. He said that he returned to India in August 2009 despite fears for his life and reported the matter to the local police who apparently could not, or would not, help him.

10    The first appellant claimed to fear persecution because he was Muslim and also because of his political involvement with the Congress Party at the hands of BJP officials and radical Hindus. He also claimed that his children faced harassment at school as a result of tensions between Hindus and Muslims.

findings of the tribunal

11    The Tribunal was satisfied that the first appellant was a Muslim and that his evidence regarding his political activities and involvement with the Congress Party in India was credible. It found that the first appellant was an ordinary member of the Congress Party in India who was well known by local Muslim communities in Surat and Ahmedabad. However, there were other important aspects of the first appellant’s claims about which the Tribunal was not satisfied.

12    The Tribunal was not satisfied that the first appellant’s religious or political opinion was the essential and significant reason for the persecution feared by the first appellant in India. Nor was it satisfied that the first appellant’s fear of persecution was well founded. In particular, it found that the first appellant did not have a well founded fear of persecution for reasons of his race, nationality or membership of any particular social group.

13    The Tribunal found that the first appellant exaggerated many of his claims about the events that occurred during the time he was involved in student politics.

14    Further, the Tribunal did not accept that the first appellant left his job (in July 1994) at the Municipal Corporation because he was in fear of being seriously harmed and subjected to false charges. It accepted that he may have left for political and religious reasons given that the BJP did not hold power in the Municipal Corporation but it went on to find that he did so knowing that he would be able to take up a well respected position (in August 1994) as an Assistant Manager with the DCB. The Tribunal noted that the first appellant took up such a position in the same region as where he had previously worked. This indicated to the Tribunal that he was not in fear of his life or afraid of being falsely accused.

15    The Tribunal accepted that the first appellant reported four officers of the DCB for fraud who were then sacked. It also accepted that those men may have approached their local BJP leader and sought to have him exercise his influence with the DCB. Importantly, the Tribunal said that it did not accept that the four men would have convinced anyone that they were sacked because of their association with the BJP since there was clear evidence that they had acted fraudulently. According to the Tribunal, it was more likely that the four men tried to use their connections with BJP leaders to retain their employment with the DCB.

16    The Tribunal also accepted that the four men may have attempted to bribe or threaten the first appellant while he was at the DCB in an attempt to induce him to retract his allegations of fraud. It also accepted that they may have threatened the first appellant over the telephone because they held him responsible for the loss of their jobs and reputations. However, the Tribunal found that the first appellant understood these as “empty” threats. The Tribunal noted that the first appellant did not seek to relocate his family to another area until they travelled to Australia.

17    The Tribunal found that the purpose of the first appellant’s travel to Australia was not to flee persecution but to seek a better future for his family. This was, the Tribunal found, the reason why he left his job at the DCB. It did not accept that he left his job on the advice of senior staff of the bank. It noted that the first appellant continued to remain active in political campaigning throughout the period in which he claimed to be threatened by the four men.

18    The Tribunal concluded that it was not satisfied that the first appellant had a well founded fear of persecution now or in the reasonably foreseeable future if he returned to India.

19    The Tribunal rejected the second appellant’s claims that she too feared persecution from the same four men who had threatened her husband if she were to return to India. She claimed that while her husband was in Australia, they had threatened to kidnap her children and had tried to physically abuse her.

20    The Tribunal considered that the second appellant’s claims were exaggerated and unreliable. On the basis of its disbelief of the claims and evidence of both the first and second appellants the Tribunal was not satisfied that the second appellant faced a real chance of persecution now or in the reasonably foreseeable future if she were to return to India.

21    As to the children, the Tribunal found that they did not face a real chance of persecution now or in the reasonably foreseeable future if they were to return to India. In reaching this conclusion the Tribunal considered specific claims made in relation to the children based upon teasing and harassment said to have been suffered by them at school on account of their religion. In neither case was the Tribunal satisfied that the persecution feared amounted to serious harm.

proceedings in the federal magistrates court

22    The appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision on the following (amended) grounds:

1.    The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s 91R(2)(a) of the Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal’s failure to satisfy this statutory obligation was a serious jurisdictional caused by the Tribunal.

2.    The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

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 Act.

4.    The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

(a) it failed to properly apply the consideration that the applicant’s for refugee status ought be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.

5.    The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Gujarat, India. The Tribunal used this information. This was against section 424A of the Act.

6.    The Tribunal constructively failed to exercise its jurisdiction;

Particulars: The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

7.    The Tribunal has failed to investigate applicant claims specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 25 August 2011 was effected by actual bias constituting judicial error. Therefore the applicants submit that Tribunal failed to analyse properly the “future harm” the applicants may face if they 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 the applicants claim.

[errors in original]

23    In his reasons for decision, the Federal Magistrate recounted the background facts and the Tribunal’s reasons for decision. His Honour then set out the seven grounds contained in the amended application and explained why he did not consider any of them to have been made out.

24    As to the first ground, his Honour understood it to raise a complaint that the Tribunal did not consider whether the first appellant and his family would suffer harm if they relocated within India. His Honour was of the view that the Tribunal did consider the possibility of re-location which it referred to (at para [148]) in its reasons.

25    As to the second ground, his Honour held that having found that the first appellant did not have a well founded fear of persecution for reasons of religion, it was not necessary for the Tribunal to consider the question of state protection.

26    His Honour found the appellants’ third ground “somewhat confusing” as it was not clear what provisions of the Act the appellants were relying upon. His Honour noted that it is the role of the Tribunal to come to a state of satisfaction pursuant to s 65 and s 36(2) of the Act on the basis of the evidence it hears and from other sources of evidence. His Honour noted that if the appellants wished to show that the Tribunal had done this in breach of the Act, they needed to particularise such a claim, but they had never done so.

27    His Honour found that the appellants’ fourth ground was (in substance) seeking (impermissibly) merits review of the Tribunal’s decision.

28    His Honour noted that the appellants’ fifth ground was based upon a misconception that s 424A required the Tribunal to provide the country information to the appellants.

29    As to the sixth ground, his Honour found that the Tribunal did investigate the appellants’ claims in detail and that there was no substance to the appellants’ arguments to the contrary.

30    The final ground before the Federal Magistrate was dismissed by his Honour as without substance given the Tribunal’s discussion of the “real chance” test at paras [118] and [147] of its reasons.

31    His Honour dismissed the application and made a costs order in favour of the first respondent.

GROUNDS OF APPEAL

32    In this Court, there were two grounds of appeal raised in the Notice of Appeal:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants [sic] claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Act.

33    The first ground of appeal concerns a point that was not raised in the Court below. The second ground of appeal is in identical terms to the third ground in the application before the Federal Magistrate.

DISPOSITION

Ground One

34    It is not apparent what aspect of s 91R the appellants are referring to in this ground or what it is that the Tribunal is supposed to have ignored. In any event, it appears from the Tribunal’s reasons that it considered the appellants’ claims in considerable detail and in accordance with the requirements of the Act. There is nothing to suggest that the Tribunal overlooked or misapplied s 91R in any respect. And there is nothing in the Tribunal’s reasons that might even begin to support the allegation that the Tribunal’s decision was “manifestly unreasonable”.

Ground Two

35    Again, the notice of appeal fails to identify the requirements of the Act which the appellants assert the Tribunal failed to comply with. There is no substance to this ground of appeal.

36    The appeal will be dismissed. The first and second appellants are to pay the costs of the first respondent.

37    Orders accordingly.

Associate:

Dated: