FEDERAL COURT OF AUSTRALIA SZAJL v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 SZAJL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 256 of 2004 BEAUMONT, MERKEL AND HELY JJ SYDNEY 17 AUGUST 2004 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 256 OF 2004 THIS IS AN APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: SZAJL APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: BEAUMONT, MERKEL AND HELY JJ DATE OF ORDER: 17 AUGUST 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 256 OF 2004 THIS IS AN APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: SZAJL APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: BEAUMONT, MERKEL AND HELY JJ DATE: 17 AUGUST 2004 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: BACKGROUND 1 This is an appeal from a decision of the Federal Magistrates Court, dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 21 March 2003, in which the Tribunal affirmed the decision of the respondent's delegate not to grant the appellant a protection visa. 2 The appellant, an Indian Moslem, and his family arrived in Australia on 8 September 2001. He applied for a protection visa on 17 October 2001, claiming to fear persecution by Hindu extremists by reason of his religion, Islam. THE TRIBUNAL'S DECISION (a) The appellant's claims 3 The Tribunal summarised the appellant's claims to the following effect: (i) Up until 1999, the appellant lived in Mombai and was the proprietor of a successful newsagency near the main railway station and the city market. (ii) The appellant's father (who had died in 1996) was a victim of extortion when an extremist Hindu organisation (Shiv Sena) demanded that he hand over the newspaper business and building which he owned. The appellant's father went to the police (despite threats from the Shiv Sena of harassment if he did so), but the police offered no practical assistance. (iii) In March 1995, these extremist supporters took away the appellant's brother, who has not been seen since. (iv) The appellant was beaten by the Shiv Sena, who demanded he leave his shop. He would have been happy to sell, but no other Hindus were prepared to buy through fear of the Shiv Sena. (v) The appellant sought assistance from his local council ('Sarpanch'), as its members were mainly Hindus. But no assistance was forthcoming 'due to their fear of Shiv Sena'. (vi) The appellant 'escaped' to Europe in October 1999, returned to India in 2000, and attempted to re-locate to Jaipur and later Madras, but these moves were unsuccessful because he could only speak Hindi (the national language) and not the local language, and he had no job and no money. Meanwhile, the Mombai shop and the site were occupied by Shiv Sena supporters. The appellant refused to sign the property over to Shiv Sena. The appellant, his wife and daughter left for Australia on 7 September 2001. 4 The Tribunal heard evidence from a friend of the appellant (an Australian citizen by birth) which 'generally corroborated the evidence regarding communal violence in Mombai'. The friend also said that the appellant's shop no longer existed, as it had been destroyed during the 1992 riots, but that the appellant still owned the title to the land. (b) The Tribunal's findings 5 The Tribunal accepted, on the evidence before it, the appellant's subjective claim to fear persecution if he returned to India. 6 But the Tribunal was not satisfied that the claim was well-founded for the following reasons: 7 The Tribunal considered country evidence that Shiv Sena members and other criminal groups, including Moslems, were involved in extortion activities in Mombai. The Tribunal accepted the substance of the appellant's claims regarding difficulties which he and his family faced with Shiv Sena activists (at least up to 1995), but it was not satisfied that the extortion suffered by the appellant was motivated by his religion, as there was no country information before the Tribunal to suggest that Muslims are – '… the sole target of fundamentalist Hindu extortionists, or that Hindus are the only persons involved in this illegal activity. In fact, some underworld figures involved in extortion are known to be Moslems.' 8 The Tribunal noted that the Shiv Sena 'would appear to be very catholic in its targeting', citing a newspaper comment that 'in and around Mombai … the victims of extortion are none other than the petty Hindu businessmen …'. Accordingly, the Tribunal found that the harm directed at the appellant was for criminal reasons, rather than for Convention reasons. 9 Moreover, the Tribunal held, country information showed that the Indian authorities are determined to protect people from harm by Shiv Sena and the Tribunal cited several extracts from Indian newspapers to support this. 10 The Tribunal found that the appellant had failed to substantiate a case that his alleged persecution was the result of the State's failure to protect him. The Tribunal found the appellant had the same protection of the Indian authorities in relation to the harm he experienced which would be available to other citizens in Mombai. 11 For 'completeness', the Tribunal next proceeded to consider whether persons such as the appellant had a well-founded fear of persecution in India 'over their Moslem identity.' 12 The Tribunal listed certain country information which concluded (in 2000) that 'despite some incidents of violence during the period covered by the report, relations between various religious groups generally are amicable among the substantial majority of citizens'. But the Tribunal noted that a 2002 report stated: 'The potential for renewed Hindu-Moslem violence remains considerable, and both sides committed human rights abuses during the year (2001)'. The Tribunal noted that country reports show that the Indian government 'regularly uses para-military, and, if necessary, military forces to quell communal violence …'. 13 The Tribunal noted that: '…(c)omparatively few Moslems have been killed in communal violence in India in recent times and most of the violence has occurred in a few specific States such as Gujarat.' 14 In considering whether the appellant had received inadequate police protection, the Tribunal was not convinced that the appellant had endeavoured to use, to the fullest extent possible, his access to the police and the courts to defend his property rights. The appellant made only one attempt to involve the police, following the abduction and presumed death of his brother. 15 In considering the appellant's claim that he could not apply to the courts because he lacked funding, the Tribunal said: 'As India and certainly Mombai, has a relatively sophisticated banking and legal system the Tribunal was surprised that the [appellant] did not use his land titles to the property as co-lateral security on a loan. The Tribunal received evidence that the property was situated beside a popular railway station and thus was a good commercial site. … Accordingly, the Tribunal does not accept as credible the [appellant's] claim that no one is prepared to buy the property because they are afraid of the Shiv Sena.' 16 The Tribunal noted that the most recent incident of extortion alleged took place eight years ago (1995). 17 The Tribunal found that a relatively high degree of lawlessness is 'a reality in a cosmopolitan city of approximately 10 million like Mombai'. However, 'inter-communal riots are not common occurrence and are generally incident driven … . Such events are not … even yearly occurrences in Mombai …'. 18 With respect to the appellant's visit to Europe in October 1999, the Tribunal found that his failure to give any explanation as to why he did not claim refugee status while there raised questions as to his credibility. 19 The Tribunal believed that relocation within India, preferably in states where the appellant will have no language difficulty, still represents a 'reasonable' possibility. 20 Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution under the Convention should he return to India now, or in the foreseeable future. appeal to The Federal Magistrates court 21 In his application to the Federal Magistrates Court for judicial review, the appellant claimed the Tribunal had erred, by way of jurisdictional error, in finding that the harm suffered was not motivated for reasons of his religion; in finding that the appellant could avail himself of the protection of the State; in finding that the appellant could relocate within India; and in finding that the appellant did not have a well-founded fear of persecution under the Convention should he return to India. 22 In dismissing the application for judicial review, the Magistrate held: · In relation to the first claim, even if facts asserted by the appellant were factually true, they did not prove jurisdictional error. It was open to the Tribunal to find that there was no Convention nexus between the harm apparently suffered by the appellant and his religion. · The second ground of review asserted by the appellant 'suffer[ed] the same [i.e., factual rather than jurisdictional error] problems'. · Although not raised by the appellant, there may be a question of whether the appellant was denied procedural fairness in relation to the country information concerning effective State protection. However, it was unnecessary to make any finding in relation that question because: (a) There was no evidence that would lead the court to conclude that the appellant was denied the opportunity to comment on the country information; (b) The Tribunal was probably entitled to rely on s 424A(3) of the Migration Act 1958 (Cth) ('the Act') in relation to the country information. (c) There was no procedural unfairness because of the notice given to the appellant by the Immigration Department. · There was no legal error demonstrated in relation to the issue of relocation. The appellant asserted that he could not relocate within India because the Shiv Sena were everywhere in the country. However, the Tribunal was not in truth obliged to consider the issue of relocation at all, because it had found no Convention nexus with the harm suffered by the appellant and had also found that he could avail himself of effective State protection. · Finally, the claims made by the appellant did not extend much beyond a contest over the merits of the Tribunal's decision. The factual errors asserted by the appellant were not established by the evidence, but even if they were, they did not point to jurisdictional error. Appeal to this court 23 The appellant lists five grounds in his Notice of Appeal, filed 1 March 2004, which, he claims, were findings that the Federal Magistrate should have made in relation to the Tribunal's decision, to the following effect: 24 Grounds (a) and (e) take issue with the Tribunal's findings that 'the harm suffered by the [appellant] was not motivated for reasons of his religious grounds' and that 'the [appellant] did not fall within a class of persons constituting 'religious persecution' for the purposes of Art 1A(2) of the Refugees Convention' as there was 'no Convention nexus with the harm suffered by the [appellant]'. 25 By his Ground (b), the appellant appears to claim that the Tribunal did not accord procedural fairness in failing to provide the appellant 'with particulars of information, which formed part of the reason[s] of the Tribunal's decision, namely that the [appellant] could avail himself of the protection from the State in relation to harm he experienced'. The appellant further claims that there was no evidence for this finding, which constitutes a jurisdictional error. 26 Ground (c) asserts that the Tribunal should have put to the appellant 'its doubts about documents containing information personal to the [appellant] from different sources of India, and [that] those doubts formed part of the reason for the Tribunal's decision'. 27 Ground (d) asserts the 'Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the appellant if he returned. By not dealing with this issue, it is said that there was a constructive failure to exercise jurisdiction on the part of the [T]ribunal, or error of law and[/]or lack of procedural fairness'. CONCLUSIONS ON THE PRESENT APPEAL 28 It will be convenient to group the appellant's grounds of appeal into three classes, as follows: (a) Did the Federal Magistrate err in failing to find that the appellant was denied natural justice? 29 This ground may be subdivided as follows: (i) Did the Tribunal not provide the appellant with particulars of information which formed part of its reasons, namely that the appellant could avail himself of the protection of the State? and (ii) Did the Tribunal not put to the appellant its doubts about documents containing information personal to the appellant from different sources in India? 30 As the respondent has submitted, there are both procedural and substantive difficulties with this ground. 31 The first is that the matter was not argued by the appellant before the court below. Generally speaking, an appellant should not be permitted to raise an issue for the first time on appeal, particularly where evidence could have been given which could have meant that the point did not succeed: Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8. In order to establish that the appellant was not given an opportunity to comment on country information, it would have been necessary for him to establish what was, or more accurately, what was not, said at the hearing held by the Tribunal on 18 February 2003. The appellant did not attempt to do so. Moreover, the claim that the appellant was not given such an opportunity could have been met with evidence to establish that he was in fact given the opportunity. For those reasons, the appellant ought not to be allowed to raise the point on appeal. 32 The second difficulty is that, even if the appellant were given leave to raise the ground on appeal, he would still need to establish the factual basis for it. He has not sought to do so and so the ground must, in any event, fail. 33 Thirdly, whatever view is taken of the proper construction of s 424A(3)(a) of the Act, the Federal Magistrate suggested that it could operate to exclude any obligation under s 424A(1). The relevant information concerned the efforts by the State authorities to protect against the extremist violence. It was not specifically about the appellant or any other person. Was it also only about a group to which the appellant belongs (ie, people the subject of extremist violence)? If it were not about that group, it would presumably not be relevant to the decision and there would be no obligation to disclose it in any event. But we need not pursue s 424A further here. 34 In the absence of particulars, it is not clear what is meant by the second part of the first issue. It appears to be an attempt to raise an argument based on the decision of the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1 at [54], where it was held, in the circumstances, that the Tribunal denied the appellant procedural fairness by not giving him an opportunity to address its concerns about the authenticity of letters produced by him in support of his claims. That argument, however, is irrelevant to the circumstances of this case. There was no finding of forgery or of any collusion by the appellant to create documents to support his case. In light of this, the ground appears to be part of a generic formulation of grounds of appeal made without regard to the judgment from which the appeal is brought. 35 Moreover, as the Federal Magistrate observed, the appellant had been put on notice of material information by the Department's letter, dated 2 April 2002, relevantly as follows: 'The following information may be taken into account when a decision is made on your Protection Visa application. The material contained herewith may lead me to reject your application: · You claim to fear persecution by Hindus because you are a Muslim and that following the incident of Babri Mosque you have lost your shop in Bombay. In describing the meaning of the term persecution as contained in the Refugees Convention, Justice McHugh of the High Court in Applicant A stated that private persecution is not Convention related. He stated that: Persecution by private individuals or groups does not itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. · In considering whether the Indian authorities may be considered unwilling or unable to provide adequate [S]tate protection against private mistreatment of the kind you claim to have suffered, I have considered the following independent country information: According to the UK Home Office, the Indian government respects its citizens' rights to freedom of religion, and does not discriminate on the basis of religion. The Indian authorities do not restrict the religious activities of Muslims. Muslims have freedom of religious practice and freedom to organise their services according to their codes, religious teachings and customs. (The UK Home Office @http://www.ind.homeoffice.gov.uk). The same report indicates that following the attempt by Hindu devotees in 1990 to begin construction of a Hindu temple to replace the mosque at Ayodhya (the Babri mosque), thousands of Hindu activists were arrested in an attempt to prevent a Muslim-Hindu confrontation. The United Nations Special Rapporteur on Religious Intolerance concluded that the situation in India relating to tolerance and non-discrimination based on religion is generally satisfactory. The country's commitment to democracy, sound democratic institutions, legislative and government measures, and the secular nature of the state all contributed to religious tolerance in India. In their Annual Report on International Religious Freedom, published 5 September 2000, the U.S. Department of State concluded that despite some incidents of violence during the period covered by the report, relations between various religious groups generally are amicable among the substantial majority of citizens. Several mosques have been destroyed in India, most notably the Babri Masjid in Ayodhya on 6 December 1992. The UN Rapporteur stated that according to official and non-governmental observers, the destruction of the Babri Masjid was an aberration which could not be interpreted as evidence of an official policy of religious intolerance directed against Muslims. · The adequacy of [S]tate protection must be understood in the light of comments by the Federal Court in the case of Prathapan … … a person claiming refugee status is not, in my opinion, ordinarily entitled to rely on the supposed inadequacy of reasonable State protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious, criminal harm for non-Convention reasons. · In the light of the above advice, you would have the same recourse to [S]tate protection as any other Indian citizen. Emmett J in the High Court case of Thiyagarajah stated that: Protection by no means implies that the authorities must, or can, provide absolute guarantees against harm. What matters is that the [S]tate is prepared to protect its citizens and has the means available to do so. Independent evidence indicates that the Indian government is prepared to protect its citizens and has the means even if it cannot guarantee the effective protection from harm of every citizen at every place in the country at a given time. · Your response to question 32 in your application, which asked you to give details of all addresses outside Australia where you have lived for 12 months or more in the last ten years, indicates that you have lived at the same address from 1968 until September 2001 (the time you left to Australia). This casts doubt about the plausibility of your claim that you fear persecution in India. A person who has a genuine fear of persecution would at least attempt to relocate to another area in his/her country of residence, where it is safer than the state/locality where they reside. However, if you have a subjective fear of persecution you may choose to reduce the risk of the mistreatment you claim to fear in Bombay by relocating to another Indian state or locale which isn't affected by inter-religious communal tensions.' 36 In our opinion, there is no substance in the appellant's claim that he was denied natural justice. (b) Did the Federal Magistrate err in failing to find that the Tribunal erred by not assessing whether the State was able to offer adequate protection to the appellant if he returned to India? 37 As the respondent has submitted, the finding made by the Tribunal that the appellant had the protection of the authorities available to other Mombai citizens was made in the context of the earlier finding that the harm feared by the appellant was not for any Convention reason. That being so, it was necessary, in order for the appellant to be a refugee within the definition of Art 1A(2) of the Convention, for him to establish that the State tolerated the harm or condoned it for one of the Convention reasons: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Where the harm feared is inflicted by the State or its agents is one thing. But where that is not so, and the harm is not for a Convention reason, the necessary nexus may be supplied by the attitude of the State: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 78 ALJR 678 at [21]. In this case, the Tribunal's findings were that the State did not withdraw its protection from the appellant at all (or, significantly, not for any Convention reason). The finding was that this protection was given equally to the appellant and to all the other citizens of Mombai. That being so, there was no Convention nexus to any harm feared. 38 In our opinion, this ground of appeal cannot be substantiated. (c) Did the Federal Magistrate err in failing to find that the Tribunal erred in finding that the harm directed to the appellant was for reason of his religion? 39 As mentioned, the Tribunal found that the harm feared by the appellant at the hands of the extremist group, Shiv Sena, was not for any reason connected with the appellant's religion; that the group was very catholic in its targeting; and, also, that they were not the only group involved in extortion and other illegal activities. 40 The Federal Magistrate found that the Tribunal's findings were open to it on the material. Part of the information relied upon by the Tribunal referred to extortion by that group of 'petty Hindu businessmen'. That information was, in our opinion, logically probative of the Tribunal's finding. 41 In our view, the appellant's argument in the court below amounted to an attack on the merits of the finding, rather than its legality. We agree with the respondent's submission that the appellant's argument relied on the claim that the appellant had given certain evidence that the Tribunal then ignored. 42 No basis exists for the grant of judicial review on this account, bearing in mind that the appellant must demonstrate jurisdictional error. 43 This ground of appeal cannot succeed. orders 44 Accordingly, the appeal will be dismissed, with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 17 August 2004 Solicitor for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 August 2004 Date of Judgment: 17 August 2004