FEDERAL COURT OF AUSTRALIA

SZQQY v Minister for Immigration and Citizenship [2012] FCA 1231

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to 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 a Federal Magistrate given on 29 June 2012 (SZQQY v Minister for Immigration and Citizenship [2012] FMCA 549) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The appellant is a citizen of India who arrived in Australia on 3 December 2010. On 14 January 2011, he applied to the Department of Immigration and Citizenship for a protection visa. A delegate of the first respondent made a decision to refuse that application on 14 April 2011. On 10 May 2011, the appellant sought review of that decision by the Tribunal. The Tribunal affirmed the decision of the delegate on 23 August 2011.

Background

3    The appellant claimed that he was from Kerala and that he had been an active member of the Communist Party of India (CPI(M)) since his student days. He claimed that he had been targeted and attacked by members of rival parties (the BJP and the RSS) and that, in March 2008, he had been threatened by members of the BJP and told to leave the CPI(M) or he would not be able to continue living normally. The appellant claimed that, on 14 April 2008, he had been assaulted on his way home from work and hospitalised for two weeks. The appellant claimed that he conducted a wristwatch business which involved him travelling to locations such as Madras, Bangalore, Bombay and Calcutta. He claimed that, as a result of these threats, he scaled down his business activities with the consequence that his capacity to earn a living was seriously affected.

4    The appellant claimed that, with the help of his brother-in-law, a visa was arranged which permitted him to live in Oman. He said that, in June 2008, he left India and went to Oman where he stayed for two years.

5    The appellant claimed that, in 2010, he encountered members of the BJP and RSS in a market in Muscat. He claimed that those persons then went to the appellant’s sponsor in Oman and informed the sponsor that the appellant was a murderer in India (a claim which was false). The appellant claimed that, as a result of this contact, he became extremely apprehensive and left his job a few months later.

The Proceeding in the Tribunal

6    The appellant attended hearings before the Tribunal on 3 August 2011 and on 11 August 2011 at which time determinative issues were traversed. At the resumed Tribunal hearing on 11 August 2011, the appellant claimed that he had been seen by BJP supporters in Muscat in late December 2009 or January 2010. He claimed that, after these people visited his sponsor in Oman, he went into hiding. He produced to the Tribunal a missing persons notice in the local newspaper which he said that his sponsor had placed. The notice stated that the appellant had been missing for about a week commencing on 9 February 2010. The appellant also claimed that his Omani visa was renewed for another two years in June 2010 after his brother-in-law asked the sponsor to facilitate the renewal, despite the fact that the appellant no longer worked there.

7    The Tribunal did not accept the core claims advanced by the appellant. The Tribunal found that the appellant gave inconsistent evidence before the Tribunal as to when he had become a member of the CPI(M) and that his evidence about the process for joining the CPI(M) was not consistent with that process as outlined in the CPI(M)’s constitution. Furthermore, the Tribunal did not accept that the appellant had been a longstanding member of the CPI(M) or that he had been persecuted for his political beliefs. The Tribunal also found that the appellant gave inconsistent evidence as to when he had first been threatened and attacked in India and that, when questioned about this, the answers which he provided to the Tribunal were vague and evasive. The Tribunal also found that the appellant gave inconsistent evidence about his alleged encounter with the BJP members in Muscat.

8    The Tribunal did not accept that the appellant had scaled down his business activities because of threats but found that he had done so because of changing economic conditions. The Tribunal concluded that the reason that the appellant had left India for Oman was because his brother-in-law had offered him a job there. The Tribunal based this finding upon the appellant’s own evidence that the threats which he had outlined had been made by local rival parties. The Tribunal found that his work required him to travel to other cities in India. From these matters, the Tribunal concluded that local threats would not have caused him to reduce his business.

9    The Tribunal did not accept that the appellant would have been able to obtain his visa renewal if he had been reported as missing with the Omani authorities. The Tribunal found the appellant’s claim that he had been traced to Oman and threatened there implausible, given that he had only claimed to be an ordinary member of the CPI(M) and had, by 2010, been inactive in the party for two years.

10    The Tribunal rejected the appellant’s credibility as a witness, relying upon these matters as demonstrating that his core claims lacked veracity.

The Proceeding in the Federal Magistrates Court

11    On 20 September 2011, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. He relied upon the following grounds in his application:

l.     The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Kerala, India. The Tribunal used this information (RRT decision record pages 19 to 21). This was against section 424A of the Migration Act 1958.

2.     The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to [sic] heard in respect of those matters.

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

Particular of Grounds

a.     The tribunal did not consider the applicant who had been under immense and intimidating pressure from BJP members and harassed because of the membership with CPIM.

b.     In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future BJP members will seriously harm him perhaps kill him.

4.     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.

12    In his Reasons for Judgment, the Federal Magistrate accurately summarised the factual and procedural background to the appellant’s application in the Federal Magistrates Court. His Honour then addressed each of the grounds relied upon by the appellant in the Federal Magistrates Court, commencing his consideration of those grounds in detail at [16] of his Reasons. His Honour’s detailed reasons may be summarised as follows:

(a)    The Tribunal had complied with its obligations vis-a-vis the appellant pursuant to s 424AA and s 425 of the Migration Act 1958 (Cth). In particular, the Tribunal had made clear to the appellant those matters which might be determinative in accordance with s 425;

(b)    The Tribunal did not fail to consider the appellant’s claims but, rather, rejected them; and

(c)    The Tribunal did not fail to consider relevant documentary evidence. In this regard, at [23]–[33] of his Reasons, the Federal Magistrate carefully looked at the complaints made by the appellant and found no basis for the criticisms advanced by the appellant in respect of these matters. In particular, his Honour considered the significance of the newspaper clipping relied upon by the appellant in context and correctly concluded that the newspaper clipping, although it had been taken into account by the Tribunal, was not considered persuasive by the Tribunal.

As far as the two medical certificates were concerned, his Honour again correctly observed that one of those certificates had been specifically addressed by the Tribunal whilst the other, although not specifically discussed at length by the Tribunal, had nonetheless been taken into account.

Finally, at [28]–[32] of his Reasons, his Honour carefully looked at the treatment which the Tribunal had given to the affidavits provided by the appellant’s wife and daughter and concluded that they had virtually no probative value. The Tribunal had correctly addressed the significance of those affidavits.

13    The remaining grounds of failure to consider the gravity of the appellant’s circumstances and the alleged failure to enquire were both rejected by the Federal Magistrate.

The Appeal in this Court

14    By Notice of Appeal filed on 20 July 2012, the appellant seeks to overturn the Federal Magistrate’s decision. He relies upon two grounds only. They are:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants 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 learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

15    These two grounds are expressed in precisely the same terms as the two grounds relied upon by the applicant in SZRDY v Minister for Immigration and Citizenship [2012] FCA 1230 in his draft Notice of Appeal lodged with the Court in that matter.

16    The first ground is misconceived and I reject it for reasons which I gave in SZRDY v Minister for Immigration and Citizenship at [26].

17    The second ground is an unparticularised general allegation which, at best, impermissibly raises merits review. I reject it also.

18    I should add that it is quite unfair to the Federal Magistrate in the present case for the appellant to contend, as he does, that the Federal Magistrate dismissed his case without considering the legal and factual errors contained in the decision of the Tribunal. Before the Federal Magistrate, the appellant made no attempt whatsoever to identify any of those alleged errors. The Federal Magistrate was more than fair to the appellant in endeavouring to discern with clarity the precise complaints being made by him. Having done his best to ascertain the gravamen of those complaints, the Federal Magistrate went on to give detailed consideration to all of the matters raised by the appellant, as he understood them, and more than adequately dealt with the grounds of complaint which had been raised by the appellant in the Federal Magistrates Court. In light of all of these matters, the general unparticularised complaint now made is unsustainable.

19    For those reasons, I will dismiss the appeal with costs.

Associate:

Dated:    12 November 2012