SZCXQ v Minister for Immigration & Citizenship [2007] FCA 239

FEDERAL COURT OF AUSTRALIA

SZCXQ v Minister for Immigration & Citizenship [2007] FCA 239 SZCXQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1725 OF 2006

GRAHAM J

23 FEBRUARY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1725 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCXQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 23 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the respondent be altered from 'Minister for Immigration and Multicultural Affairs' to 'Minister for Immigration and Citizenship'. 2. Refugee Review Tribunal be added as a second respondent. 3. The appeal be dismissed. 4. The appellant pay the first respondent Minister's costs fixed in the agreed sum of $3,500. 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 1725 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCXQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 23 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who has been identified for the purposes of these proceedings as SZCXQ, was born in India on 24 August 1979. He is an Indian Tamil Muslim who, prior to his departure from India on 25 July 2003, lived in Chennai in Tamil Nadu, apart from overseas trips that he made to Malaysia, Singapore and Mauritius for business purposes. The appellant was issued with an Indian passport on 22 January 1999. He entered Australia on 28 July 2003 under a visa issued to him on 30 June 2003 in India. 2 On 26 August 2003, the appellant applied for a Protection (Class XA) Visa. That Application was supported by a typed document of eight pages in length signed by the appellant which stated the matters upon which he relied in support of his Application. Reference was made to the statement in response to a number of questions in the Application form including, 'Why did you leave that country?', 'What do you fear may happen to you if you go back to that country?', 'Who do you think may harm/mistreat you if you go back?', 'Why do you think this will happen to you if you go back?' and so on. 3 By letter dated 23 September 2003 from the Minister's delegate, the appellant was advised that his Application for a Protection Visa had been refused as he did not meet the criterion for a protection visa as set out in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). Amongst other things, the Minister's delegate spoke of the appellant's claims as being 'vague and general, with no specific details with regard to the harassment/physical abuse and mistreatment he has claimed he was subjected to on several occasions; details such as dates/times/places of these events or the reasons for these attacks'. 4 The appellant had asserted that he was attacked by a group of young fanatical Hindu youths at about 10.30 pm - 11 pm on 25 December 1997, that his house was broken into by a gang of Hindu fanatics on 11 January 1999 who ransacked all of the family's belongings and physically beat the appellant, his brother and his father. He further claims that, in February 2002, Hindu fanatics entered his father's grocery shop in Chennai, setting fire to it after ransacking the shop. He says that both he and his father were 'beaten up'. Finally, he claimed that, on 10 March 2003, he was waylaid by 'Hindu thugs' when he had gone to the market to buy supplies for the shop. He says that he was beaten up. 5 The delegate drew attention to the fact that the events, if they occurred, were of a random or accidental nature. The delegate referred to the fact that the appellant had travelled extensively to three different countries between 1999 and 2003 yet never sought asylum in any of those countries. He also found that independent country information indicated that Indian citizens enjoyed freedom of movement within the country in most parts. Furthermore, he found that the governments of Tamil Nadu (in which State the appellant resided), Andhra Pradesh, Kerala and Karnataka, each had a history of support for religious minorities. 6 The delegate considered that relocation within India was a viable option for the appellant were he to return. The delegate also referred to the ability of the appellant to leave India on an Indian passport. He was not satisfied that the appellant had given an entirely credible account of his circumstances in India. 7 The appellant filed an Application for Review with the Refugee Review Tribunal ('the Tribunal') on 24 October 2003. That Application was supported by a typed document of some 13 pages presented by the appellant which, amongst other things, sought to draw attention to relative country information and contained a critique of the delegate's decision adverse to the appellant. 8 It would appear that the document as submitted was a re-engrossment of another document with some measure of repetition of the same matter within the one document. The document deals with many subjects, including the history of India over a number of centuries, and the religious differences between Hindus and Muslims. The submission even addresses hostility which has been observed at cricket matches between India and Pakistan. It would appear that, before the Refugee Review Tribunal, a death certificate relating to the appellant's mother, who apparently died on 31 December 1997, became a part of the evidence. 9 The appellant's case is that his mother died at a time when he was himself in hospital and apparently lacking in consciousness, following the first incident to which reference has been made. 10 The Tribunal invited the appellant to appear before it at a hearing on 12 January 2004 to give oral evidence. The appellant duly appeared at the hearing and gave such evidence. 11 At the conclusion of the hearing, the Tribunal member considered the Application and on 16 January 2004 reached his decision, which was handed down on 11 February 2004. 12 Having referred to the delegate's decision in some detail, and to the fact that it was the subject of a critique submitted to the Tribunal on the part of the appellant, it is sufficient for present purposes if reference is made to the 'FINDINGS AND REASONS' section of the Tribunal's decision, which relevantly provided as follows: 'The applicant claims that he has been a member of the Muslim Association and has engaged in social welfare activities for the association. He claims that because of these activities he had been physically attacked four times between 1997 and 2003. He further claims he has therefore become the target of Hindu militants who will pursue him no matter where he might go to in India. The Tribunal finds that even if it were prepared to accept that he had suffered the four assaults over some seven years as he claims, the Tribunal finds that this is not evidence eof (sic) a pattern of persecution for the Convention reason as claimed. The Tribunal finds that it would rather seem to be evidence of criminal assaults commensurate with street crime and shop robbery. The Tribunal notes that the applicant by his own evidence is not politically involved and has only been involved in social welfare activities, hardly the type of activity to attract the virulent attacks he claims to have suffered and if the attacks were for such a reason, it is hard to understand why the attacks were so infrequent and widely spaced apart in time. However, if the applicant has a subjective fear of living in Tamilnadu, the Tribunal finds that in the particular circumstances of the applicant, it would be appropriate for him to relocate to some other city of India. The Tribunal accepts the independent evidence cited above in the US State Report that: "The degree to which the BJP's nationalist Hindu agenda was felt throughout the country with respect to religious minorities varied depending on the region. In some states, governments made efforts to reaffirm their commitment to secularism" The Tribunal appreciates that he may well have to engage in language learning but that this would also be the case in Australia and the Tribunal finds that any difficulties associated with such language learning would not be so great as to make such a relocation unreasonable in the particular circumstances of the applicant's case. The Tribunal finds as unfounded his fears that Hindu militants will pursue him wherever he might go in the light of his very marginal, and localised, association with Islamic activities. In the light of these findings, the Tribunal finds that there is not a real chance the applicant might face persecution in the foreseeable future for his religion, or for any imputed political opinion, or for any other Convention reason. Therefore the Tribunal finds his fear is not well-founded. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.' 13 In the circumstances, the Tribunal affirmed the decision of the Minister's delegate not to grant the appellant a Protection Visa. On 9 March 2004, the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. That Application came before the Federal Magistrates Court, constituted by Nicholls FM on 15 August 2006. An Amended Application had been filed in the Federal Magistrates Court and it was that application which was the subject of consideration in the Court below. On 24 August 2006, the Federal Magistrate dismissed the appellant's application and ordered that he pay the respondent Minister's costs, set in the amount of $6000. 14 From that decision, the appellant has appealed to this Court by Notice of Appeal filed 8 September 2006. The Notice of Appeal nominates some eight grounds of appeal which are recorded in paragraphs 2-9 inclusive of the Notice of Appeal document. In accordance with directions given by the Court, the appellant filed a document entitled Applicant's Written Submission on 16 February 2007. 15 The matter addressed in the written submission is wide ranging but is expressed under a heading which asserts that the Tribunal's member's decision was induced or affected by actual bias. No such ground had been advanced in the Notice of Appeal except to the extent to which it was raised by the ground contained in paragraph 7. It is instructive to state in full the grounds that do appear in the notice of appeal. They were: '2. The Single judge of the Federal Magistrate Court in his Honors judgment delivered on the 24 August 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39 B of the judiciary Act. 1903. 3. The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30(8 August 2002) 4. Recent High Court judgment ; Plintiff (sic) S 157/2002 Commonwealth of Australia [2003] HCA 1 5 Recent Federal Court of Australia judgment : AGDB V Minister for Immigration and Multicultural Affairs. I will provide more ground after received the judgment. 6. The grounds and relief is very similar with a recent Federal Court judgment – SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs. 7. Tribunal made his decision in bad faith. I was prosecuted because of my religious believe and member of an Islamic Student Association. I had been targeted by Hindu fundamentalist. It was very difficult time for me, Hindu militants would pursue me no matter where else I might go in India. 8. The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM in his honor judgement delivered on 24 August 2006 failed to find the error of law and relief under section 39b of the judiciary Act. 9. My point is that despite having attended the hearing , it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.' 16 I might observe that whatever may have been the situation at the time when the matter was before the Tribunal it is quite clear to me that the appellant is fluent in English, at least at this stage, although on a few occasions during the course of the hearing he sought and obtained the assistance of an interpreter. 17 I endeavoured to afford the appellant an opportunity, given his presence before the Court as a litigant in person, to explain what his case was and what error on the part of the Tribunal he complained about. 18 Without repeating all his submissions, I should indicate that he argued in words to the following effect: 'my story given to the RRT was true'; 'I'm not getting a good solution on my story'; 'I can't go back to India'; 'I want to live in Australia'; 'if I go back to another state, they know where I am, I will not be safe, I will be found within a couple of years'; 'it is better that I stay here'; 'this is my last chance'; 'the Tribunal did not inquire or hear my case in a proper manner'; 'there is no way I could have obtained photographs of the incidents of which I complained – that would not have been possible'; 'the RRT gave its decision in a very wrongful way'; 'the RRT did not hear my case in a proper way'; 'the RRT hasn't accepted my case in a proper way'; 'if the RRT had made more inquiries, I would have got a better result'. 19 When the appellant's case was before the Federal Magistrates Court, his Honour emphasised that the applicant before him was seeking from the Court an 'impermissible merits review'. It is abundantly clear that what the appellant seeks before this Court is, as he sought below, an impermissible merits review. In relation to the grounds of appeal advanced in the Notice of Appeal it is evident that there was no relevant error on the part of the Tribunal warranting constitutional writ relief in respect of its decision. Nothing was relevantly advanced by the appellant which could support a finding of actual bias or bad faith on behalf of the Tribunal Member. 20 I would also observe that whilst the appellant in his Notice of Appeal asserted that he had been prosecuted because of his religious belief and his membership of an Islamic body, such a suggestion had never been advanced in his Submission supporting his Protection Visa Application, or in his extensive material supporting his Application for Review to the Tribunal. It may be that the word which was intended was 'persecuted' rather than 'prosecuted'. 21 This case provides a very good illustration of the unfortunate state of affairs where taxpayers in Australia are required to fund a response on the part of the Minister to allegations contained in Court documents, which are not understood and which are advanced without any foundation whatsoever. 22 When I took the appellant through each of the eight grounds identified in his Notice of Appeal, he had no comprehension of the cases or sections in the Migration Act 1958 (Cth) to which reference had been made. There has been no error demonstrated warranting the granting of relief. 23 Accordingly the appeal is dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.