SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90

FEDERAL COURT OF AUSTRALIA

SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 SZAYG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1593 of 2004 ALLSOP J 10 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1593 of 2004

BETWEEN: SZAYG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 10 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's 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 NSD 1593 of 2004

BETWEEN: SZAYG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 10 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate on 15 October 2004 in which the Federal Magistrate dismissed the appellant's application under section 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal made on 28 May 2003 and handed down on 24 June 2003 in which the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa under the Migration Act 1958 (Cth). 2 The Chief Justice has made a determination under section 25(1A) of the Federal Court of Australia Act 1974 (Cth) that a single Judge of the Court sit in the appellate jurisdiction and hear the appeal. I am sitting in the appellate jurisdiction. 3 It is important for the appellant to understand some background considerations to the role of the Tribunal and the court system. The Minister through her delegate was obliged to give a protection visa to the appellant if she, through her delegate, was satisfied of the matters referred to in ss 36 and 65 of the Migration Act. Relevantly, for present purposes, that means that if the Minister was satisfied through her delegate that Australia owed the appellant protection obligations under the relevant Refugees Convention. 4 Equally, if the Minister through her delegate, was not satisfied of those matters, she was obliged to refuse to grant a visa. That is a decision made by the Minister through her delegate in what is called the Executive branch of government: that is, through the administration of the affairs of the Commonwealth. The Minister is not a Judge and the delegate is not a Judge, but she, through her delegate, makes a decision as to whether the circumstances placed before her are such as to warrant the grant of a visa. 5 The Migration Act provides for a review of that decision by the Refugee Review Tribunal, which, though in a sense independent of the Minister, is still part of the Executive branch of government. That Tribunal remakes the decision completely afresh. It hears the review application and examines the material which the applicant for the visa wishes to place before the Tribunal. The Tribunal examines the factual material including what is often referred to as country information in order to assess what it considers to be the relevant considerations in assessing the application. From that process, if the Tribunal is satisfied of the matters in ss 36 and 65 it must grant a visa. Equally, if it is not satisfied of those matters, it must refuse to grant a visa. The Tribunal's decision takes the place completely of the delegate's decision. Within the Tribunal's decision there is the need to assess factual and other matters in order to come to the relevant state of satisfaction. That will often involve the assessment and weighing of material placed before the Tribunal by the applicant for the visa. 6 The Migration Act and the Judiciary Act provide for judicial review of the Tribunal's decision. That judicial review is the application that was brought to the Federal Magistrates Court. It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error. That is a legal term of some complexity. However, at the risk of over-simplification, it basically means that the Court's job is to ascertain whether the Tribunal in doing its task, obeyed the legal framework within which it is supposed to work. For instance, it must approach the matter in a fair and unbiased way; it must assess the applicant's claims by reference to the appropriate principles in the Act; it must ask itself the correct questions as to its task; and it must proceed giving the applicant procedural fairness, by, for instance, giving the applicant a hearing before it makes a decision. Also, it must deal with the matter before it in a way that cannot be described as irrational or capricious. Within that kind of framework, how the Tribunal assesses the facts is largely a matter for the Tribunal. It is simply not the job of the Federal Magistrates Court and it is not this Court's job under the relevant statutes to re-find the factual matters afresh. It is important to understand that difference in function between the Tribunal and the Courts. 7 Therefore, in dealing with the appellant's case, as I will in a moment, it is important to understand that I am not re-hearing the application and I cannot grant a visa. What I do is assess whether the Federal Magistrates Court made any error in how it analysed the Tribunal's decision. 8 Within the above framework I now turn to the appeal. 9 The appellant is an Indian national who arrived in Australia in 2002. In his application for a protection visa the appellant claimed to fear persecution on the basis of his being a Muslim and the persecution that he feared he would suffer upon his return to India. The history and claims of the appellant are set out in a number of places in the papers, in particular, on pages 4 and 5 of the Tribunal decision and paragraphs 2 through 4 of the decision of the Federal Magistrates Court. 10 The appellant has filed written submissions of two pages dated 31 January 2005. Nothing in the written submissions would lead me to conclude that the outline of the claims made by the Tribunal in its reasons was an inadequate description of what the appellant claimed before the Tribunal. Thus, for convenience I will refer to the terms of the Tribunal decision rather than the helpful and careful decision of the learned Federal Magistrate. 11 The appellant is a young man of now 25 years of age. He was 24 years of age at the time of the Tribunal hearing. He lived in Hyderabad in Andarah Pradesh during his life in India. He was university educated at Osmaniya University in Hyderabad, where he studied commerce. The claims of the appellant, if I may put it in this fashion for the purposes of discussion, were both general and particular. The general claims were that as a Muslim he faced discrimination and persecution in India and that all Indian Governments, State and Federal, were pro-Hindu, especially those in control of the BJP and fundamentalist Hindu parties, such as Shiv Sena. This was particularly so, it was claimed, after the Gujarat riots of 2002 in which many Hindus died in the violence concerned with the alleged Muslim attack on a train carrying Hindu pilgrims to Ayoudhya for the construction of a temple in the name of Lord Rama on the site of the destroyed Babri Mosque. Thereafter, there was a well-known and significant body of attacks in various parts of India on Muslims by Hindus in retaliation. Within the papers before the Tribunal there was material dealing with these violent and unfortunate aspects of recent history. 12 These general claims involved the assertion that Hindus want to rule India and eliminate Muslims from the country and he claimed to have been discriminated against because of his religion. 13 The claims of the appellant were also of a particular nature and the Tribunal dealt with these matters on pages 6 to 8 of its reasons. The appellant said that he was an active member and social worker for an Islamic party, Manzlis Ittehadul Muslimin (MIM). He claimed that he was accused of causing this incident and was high on the list of suspects. These particular matters were in particular that the appellant was prevented from completing his degree because of riots in Hyderabad during the period of his studies in 2000-2002; secondly that he was subjected to discrimination at the workplace when Hindus rebuked him because of his religion; thirdly, that following the Ayoudhya train massacre in 2002, unnamed Hindus placed him on a list of persons implicated because of his membership of the MIM; fourthly, that the appellant alleged that his higher status in MIM prevented him from relocating elsewhere in India as fundamentalist Hindus would always find him; fifthly, that on one occasion he was attacked en route to his home by a group of people who he did not identify; sixthly, he claimed that if he were to return to India he would not have adequate state protection because the police are pro-Hindu. 14 That was the framework of the claims which are more fully set out within the Tribunal's decision and within the Federal Magistrate's reasons, but that brief outline will suffice for present purposes. The Tribunal dealt with the matter in the following way. First of all, and importantly, the Tribunal accepted that as a Muslim the appellant could have had the subjective fears of persecution in the context of the relatively recent history of Muslim rioting since independence. It is important to understand I think in this context and in the light of the above brief recounting of events that Hyderabad is in Central India, the Ayoudhya temple is in Northern India and Gujarat Province is in Central-Western India, adjacent to Pakistan, so the events being described by the appellant were not limited to one part of India. 15 The Tribunal also accepted the appellant's claim that he was a member of the MIM, a Muslim political party, and in that party he had been a social worker. However, the Tribunal as it was both entitled and indeed was obliged to do in a matter of this kind, examined country information concerning India which it saw as relevant. In the light of that country information the Tribunal then dealt with both the particular claims of the appellant and what I might refer to as the residual general claims without meaning to lessen their importance. 16 In the light of the country information, the Tribunal dealt with the particular claims of the appellant which I have earlier outlined in and in relation to all these particular claims the Tribunal concluded on the facts that such fears as he may have had about these particular matters were not credible. A fair reading of what the Tribunal was saying leads to the conclusion that there is no particular inconsistency in that latter conclusion in the light of the earlier conclusion about the subjective fear of the appellant. The way I read the Tribunal's decision, looking at it fairly and without an eye for the discovery of error is that it accepted that the appellant may have a subjective fear of the situation in India as a Muslim, given the unfortunate and recent violent history of Hindu/Muslim rioting. That general subjective fear remained accepted but what was rejected were the particular matters that the appellant had identified. I will deal with those particular matters now. After they were dealt with the Tribunal then analysed whether or not the subjective general fear as a Muslim was sufficient to found a protection visa application. 17 As I have said, the six particular matters are set out on pages 6 through to 8. The first, that the appellant was prevented from completing his degree because of riots in Hyderabad, was dealt with and the Tribunal indicated that it was not convinced that the riots that did take place in Hyderabad in October 2002 were an adequate reason for not continuing with his studies. This factual conclusion was reached on the basis of country information. That would appear to be a conclusion open to the Tribunal. Whether it is a correct conclusion is not a matter for me as long as the Tribunal appears to have approached the question rationally, as it appears to have done. The Tribunal used the word "convinced" and looking at the decision as a whole I am satisfied that what the Tribunal was doing was dealing with a state of relevant satisfaction of the factual material and was not misdirecting itself as to a higher level of proof. 18 The next matter was that the appellant said that he had been subjected to discrimination at the workplace. The Tribunal dealt with this and was of the view that it was not satisfied that the appellant's experience of discrimination prevented him earning a living when he voluntarily left employment apparently provided by Hindus. That matter is dealt with in a paragraph on page 6 of the reasons in terms which do not appear to be irrational or addressed to an incorrect question. 19 The third particular matter was that following the Ayoudhya train massacre, unnamed Hindus placed him on a list of persons implicated in the massacre because of his membership of the MIM. The Tribunal analysed this claim and then referred to the US State Department material dealing with the question as to whether any particular party was implicated in the train incident. Taking into account those matters and taking into account the appellant's evidence, the Tribunal came to a conclusion that it did not regard as credible the applicant's claim that Hindus were holding him accountable and were searching for him all over India. The approach of the Tribunal in this respect, once again, does not display any particular attribute of being irrational or capricious. 20 The fourth particular claim was that the applicant said that his high status in the MIM prevented him from relocating anywhere in India, as fundamentalist Hindus would always find him. Although once again using the word "convinced", the Tribunal came to the view that it did not accept that a 24-year-old social worker activist would be in such a position. I make the same comment about the word "convinced" as I did earlier as to the first particular claim and I see nothing capricious or irrational in the factual approach to this question. 21 Fifthly, the Tribunal accepted that the applicant had been attacked on one occasion en route to his home by a group of people he could not identify. However, it viewed this as an isolated incident and not constituting grounds for a well founded fear of persecution. That appears to me to be a factual question open to the Tribunal. 22 The sixth particular matter was that if the applicant returned to India he would not have adequate state protection because all the police were pro-Hindu. Looking at the relevant country information, and looking at the evidence of the appellant, the Tribunal came to the view that the appellant could expect adequate state protection for any persecution, in particular if he resides in Andhara Pradesh in Central India. These are conclusions that are open to the Tribunal. 23 Having rejected those particular claims said to support the appellant's claim for a protection visa, the Tribunal then went on to dealing in more detail with the country information in order to assess the residual general claim that as a Muslim from India the appellant could expect to be persecuted on return. This country information is dealt with on pages 8 and 9 of the Tribunal's reasons. The Tribunal notes that there are approximately 140 million Moslems in India. It is the largest Moslem community in the world outside Indonesia, and represents 12.7% of India's population. Allegations and actual cases of violence against Moslems throughout India, and the level of individual risk, must be assessed in this context. According to the US State Department, Adhara Pradesh has a large Moslem population which has lived in relative peace apart from 1992. In its September 2000 Report on International Religious Freedom: India CIS Document CX44717 the Department noted: "The Indian Constitution provides for secular government and the protection of religious freedom, and the central government generally respects these provisions in practice: however, it sometimes does not act affectively to counter societal attacks against religious minorities and attempts be the state and local governments to limit that freedom…" The same report also notes that there are links between the between the ruling BJP and various reactionary Hindu organisations and suggests that these links may be related to the failure of some state governments to respect the religious freedom of minorities whether they be Moslem or Christian. Members of the BJP and RSS an organisation dedicated to a return to Hindu cultural values, have been implicated in violence. The Tribunal notes that the Department of State in its report drew a distinction between the government of states such as Gujurat, which has a recent bad history of communal violence, and other states including Andhara Pradesh which is governed by the TDP party: "Which has a history of support for religious minorities and has attempted to assuage minority fears about religious tension in the rest of the country." Furthermore the TDP is a member of the National Democratic Alliance (NDA) which governs India at a Federal level. The US State Department 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." The Tribunal accepts that from time to time there will continue to be flare-ups of inter communal violence which tend to occur in some states more than others, especially those in North West India. On the basis of country information, the Tribunal is not satisfied that there is a real chance that now or in the foreseeable future the applicant will face the persecution if he returns to India on account of his religious beliefs. 24 The Tribunal concluded from that country information that it would accept that from time to time there will continue to be flare-ups in communal violence which tend to occur in some states more than others, especially those in North-West India. However, the Tribunal found that on the basis of the country information it was not satisfied that there was a real chance that now or in the foreseeable future the appellant would face persecution if he returned to India, on account of his religious beliefs. It must be recognised that that conclusion was reached in the context of the rejection of the particular claims of the appellant and was a rejection of a claim in effect of an Indian Muslim asserting persecution by reason of return to India. 25 I am satisfied that the Tribunal has not impermissibly divided the factual material up into water-tight categories and it would appear to me that the Tribunal has dealt with the matter by dealing with the individual claims of the appellant as well as globally assessing material. 26 The notice of appeal with respect to the appellant is less than informative. It states as the ground of appeal that the Honourable Federal Magistrate failed to find an error of law in the decision of the Tribunal. Given that is the form of the notice of appeal, that explains why I have dealt directly with the Tribunal's decision rather than examining directly the reasons of the Federal Magistrate. 27 The appellant has filed written submissions which if I may respectfully say so succinctly and clearly put his complaints. They are of six paragraphs. 28 The first is an assertion that the Federal Magistrate was wrong in failing to find an error of law. 29 The second was a paragraph which in effect complained of an internal inconsistency in the Tribunal's reasons by the acceptance of the subjective fear and the acceptance of some discrimination but the rejection of persecution. Persecution or the well-founded fear of persecution is a factual matter. It is not concluded by identifying the fact that the country in question has displayed a measure of discrimination in the past. Discrimination and persecution are not coextensive concepts, each is relevant to the other, but it is a factual question in all the circumstances whether the Tribunal is satisfied that there is a well-founded fear of persecution. 30 The third paragraph of the written submissions deals with the appellant leaving his job due to harassment and discrimination. Once again, the paragraph deals with underlying factual material which, subject to the constraints I earlier identified, are fundamentally matters for the Tribunal. 31 The fourth paragraph asserts that the Tribunal incorrectly considered country information regarding the incident in which Hindu pilgrims had been killed to be inconsistent with the appellant's claim that he was suspected of involvement in that incident. The paragraph stated that after the incident of the train massacre in Gujarat Province, all the Muslim organisations had been put on surveillance and active youths of the Muslim organisations in India were thoroughly searched. He said that the mere fact that the police did not interview him following the train massacre was due to his hiding from the police in order to save him from getting falsely incriminated. In relation to these submissions, the appellant must recall what I said earlier about the role of this Court in what it is entitled to do in examining the Tribunal decision. I am simply not permitted to re-find the facts about each element dealt with by the Tribunal. It may or may not be valid to put matters about the Tribunal's fact-finding in relation to the train massacre incident but it appears to me that the Tribunal has approached that fact-finding task asking itself the correct questions and understanding the relevant tests of the assessment of the appellant's position. Thus the material in paragraph 4 is not such as to display what I referred to earlier as a jurisdictional error. 32 The fifth paragraph of the submissions asserts that neither the Tribunal nor the Magistrate has carefully considered the relevant facts and states that in a sense that can be understood from the fact that the appellant's claims were not accepted. Firstly, it does not follow from the refusal of his claims that the Tribunal did not conscientiously attempt to consider the relevant factors. I cannot conclude that the Tribunal failed to attempt conscientiously to deal with the appellant's case. I readily accept that the appellant disagrees with the conclusions drawn by the Tribunal. That, however, does not display error in the Tribunal's processes which I can correct. 33 The sixth paragraph contains an assertion that the appellant is entitled to a protection visa in all the circumstances. Once again, for the reasons that I have earlier identified, I am not permitted under statute or any other law to engage in that inquiry myself. 34 Thus far I have not dealt in any detail with the reasons of the learned Federal Magistrate. I have taken that course, as I said, because of the form of the notice of appeal. For somewhat differently expressed reasons, the learned Federal Magistrate came to the same conclusion to which I have come, that is, there appears to be no jurisdictional error apparent in the reasons of the Tribunal. 35 I have read the reasons of the Federal Magistrate; I find no error in them on which a successful appeal might be maintained. Thus, in all the circumstances, I have come to the view that the appeal should be dismissed. No material has been put before me which would provide a ground to vary the usual order as to costs which would flow from the dismissal of the appeal. In those circumstances the appeal should be dismissed with costs. 36 The orders of the Court are: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.