FEDERAL COURT OF AUSTRALIA SZIBE v Minister for Immigration and Citizenship [2007] FCA 579 SZIBE AND SZIBF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1922 OF 2006 CONTI J 24 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY nsd 1922 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIBE First Appellant SZIBF Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: CONTI J DATE OF ORDER: 24 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellants pay the first respondent's costs of the appeal. 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 1922 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIBE First Appellant SZIBF Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: CONTI J DATE: 24 april 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Federal Magistrate Smith delivered on 11 September 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 15 December 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated) to refuse to grant protection visas to the appellants. 2 The appellants are Indian nationals, respectively husband and wife. The appellant husband arrived in Australia on 28 March 2005 and the appellant wife arrived in Australia on 7 April 2005. On 26 May 2005 the appellants lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. Only the appellant husband made claims under the Convention with the appellant wife relying on her membership of his family unit. As members of the same family unit the fate of the appellant wife's application depends on the outcome of the appellant husband's application. 3 On 9 August 2005 a delegate of the first respondent refused to grant protection (class XA) visas to the appellants. On 29 August 2005 the appellants applied to the Tribunal for a review of that decision. On 13 September 2005, the Tribunal sent to the appellants a s 424 letter which requested that the appellant husband provide additional information including 'details (dates, places, circumstances etc) of all acts of persecution directed at you in India'. 4 Before the Tribunal, the appellant husband claimed to fear persecution from non-Muslims because of his religion and from Deobandi Muslims because of his specific Barelvi beliefs. The Tribunal member comprehensively summarised the claims made by the appellant before the Tribunal under the heading 'Findings and Reasons' appearing on page 13 of the Tribunal's reasons, which inter alia included the following: 'The first occasion when the applicant claims to have been arrested was in March 1996…According to his evidence, a group of young men who lived near him publicly celebrated the defeat of India in a cricket match, letting off fireworks and annoying neighbours, who complained to police. Although he was not at the scene when the offending actions were taken, he returned home and encountered some of them and was with them when police arrived and was arrested with them. Having heard that he was arrested, some people who had a grudge with him because he had refused to join in political activity, falsely implicated him in the incident. He was beaten by police and threatened with being killed, accused of being a traitor, this accusation no doubt arising because he was said to have rejoiced at India's defeat in the World Cup cricket match. Eventually, he was exonerated in the courts and the matter came to an end around the end of 1996. … The applicant has provided copies of what he said are court documents relating to charges arising from a fight at his local mosque on 26 June 1999, in which one man was killed and several were injured...The applicant said he was one of several people arrested as a result of false accusations made. According to the documents submitted by the applicant, he was the twelfth of twenty-two people charged…' The decision of the Tribunal 5 The Tribunal accepted that the appellant husband had been arrested on false charges in March 1996, but found that there was no ongoing disadvantage sufficiently serious to be regarded as persecution as a result of the 1996 incident. The Tribunal further found that the appellant and members of his family were associated with a registered public trust that controls the Jamil Masjid mosque in Mumbai; that the appellant husband's uncle is one of the trustees of the mosque, who are members of the Barelvi sect; that there was a long standing dispute between the trustees and people from the Deobandi sect over the issue of whether visitors from other towns in India should be allowed to stay overnight within the precincts of the mosque; and although that dispute appeared to be resolved between the two groups, a violent altercation arose at the mosque on 26 June 1999, which led to an elderly man being killed. The man's death led to the appellant husband being arrested and charged. The Tribunal observed that the 'evidence indicates that the applicant had his day in court and, when the judge found there was insufficient credible evidence to justify a conviction, he and the other accused were acquitted'. The Tribunal concluded that, in the circumstances, the actions of the local police and judiciary were effective and impartial and did not amount to persecution towards the appellant husband. 6 The Tribunal proceeded to consider whether or not the acquittal could be re-opened and considered the appellant's fear that he might face the death penalty for murder. The Tribunal found that the case may be reopened but that the appellant husband would not suffer persecution as a result, as the evidence did not suggest that the courts would be biased against the appellant husband, or that he would be treated more severely than anyone else in a similar situation. 7 In relation to the appellant husband's claim that he had avoided the adverse attention of the Deobandis by not attending his mosque, the Tribunal observed that '[e]ven if the Tribunal were to accept that the applicant had avoided the mosque, and were to make a finding that such changed conduct constituted a form of persecution (which it does not, on either account) the Tribunal's finding is that his fear that the Deobandis wish to harm him is not well-founded'. The Tribunal also found that in the remote possibility that the Deobandis would seek to harm him personally, the appellant husband would receive the protection of the local police and judicial system. 8 Finally, the Tribunal considered the issue of whether the appellant is at risk of having to defend himself repeatedly against false accusations and, if so, whether that in itself would amount to persecution notwithstanding that he would be treated impartially by the police and courts in relation 'to such hypothetical false accusations'. The Tribunal concluded that the two incidents in which the appellant had been implicated were fairly unique and therefore it was unlikely that they would be repeated. In that regard it was observed that '[t]hose who he claims made false accusations against him in 1996 have not made any further such allegations'. Grounds of review placed before the Federal Magistrate 9 By amended application filed in the Federal Magistrates Court on the 6 September 2006, the appellant sought judicial review of the decision of the Tribunal. The grounds were as follows: '1. The Tribunal's decision lacked the required satisfaction in terms of sec. 91R of the Migration Act, with regard to the 'real chance' test of future persecution when it made the following finding: "The tribunal finds that, while the genesis of the fighting on 26 June 1999 was a religious dispute, the problems which the applicant faced, and might possibly face in the future, have arisen because a man was killed in that fighting". … 2. That the Tribunal failed to assess the Applicant's claims in a "constructive and articulate manner" as required under sec. 415 of the Act, because of the following finding: "While the motivation of the accusers may have had a religious basis, the Tribunal finds that the police acted to charge the Applicant only because a serious crime had obviously been committed, and people claiming to be witnesses implicated the Applicant. In these circumstances, the Tribunal finds that the action of the police and other authorities did not amount to persecution towards the Applicant". … 3. That the Tribunal failed to act according to sec. 430(1)(d) of the Act because of its…finding despite the clear evidence to the contrary that was available on the face of the record, namely: "The Tribunal is not satisfied that the case against the accused has in fact been re-opened, The Tribunal makes no finding on whether or not the applicant was personally involved in the fighting at the Mosque on 26 June 1999. However, the Tribunal does accept that he was in the Mosque at the time and later accused of involvement in the fighting" …' The decision of the Federal Magistrates Court 10 Federal Magistrate Smith dealt with the appellants' grounds of appeal in reverse order as this better addressed the sequence of the Tribunal's reasoning. In considering the Tribunal's decision in light of the claims made by the appellant husband, the Federeal Magistrate found that ground three was misconceived as it was based upon a misunderstanding of the Tribunal's reasoning and moreover that the Tribunal plainly understood the appellant husband's claims as to being subjected to criminal charges by reason of being falsely accused. His Honour further found that the Tribunal's finding that the appellant husband was not among the people arrested and detained on the day of the incident was not contrary to the evidence before the Tribunal and, in any event, if the Tribunal made an error of fact, it was, in his Honour's opinion, clearly an error within jurisdiction since it occurred when the Tribunal was actually addressing the appellant husband's claims. It was said that 'such an error would therefore fall within the Full Court's reasoning in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68]'. 11 In relation to the second ground the Federal Magistrate found that the Tribunal's consideration of the motives of the police in charging the appellant and subjecting him to criminal trial was relevant, 'if only to exclude the basis upon which criminal prosecution can amount to persecution… [including] situations where the prosecuting authorities are complicit in the Convention motive of the accusers, so that the State may appear to "encourage, condone or tolerate the harm"…'. His Honour observed that it was pertinent for the Tribunal to address the actions and motives of the Indian authorities, 'to consider whether their actions revealed a Convention reason for the persecution, and also whether they revealed a willingness and ability of the State to discharge its obligations to provide appropriate criminal trial procedures'. 12 Smith FM found that the appellants' first ground of appeal was premised on a misreading of the Tribunal's reasoning. His Honour concluded that the two alternative findings of the Tribunal, namely, that despite a Convention nexus for the feared harm from the Deobandis, the likelihood of such harm was remote and also that 'the appellant would receive protection from the local police and judicial system', provided a sufficient explanation, free from jurisdictional error, for the Tribunal's conclusion that the appellant husband's fear 'that the Deobandis wish to harm him is not well-founded'. The proceedings before the Federal Court 13 The notice of appeal filed in the Federal Court on 29 September 2006 raises the two following grounds of appeal: 'A. The appellant submits that the learned Federal Magistrate erred by failing to recognise the Applicant's Solicitor's argument that the Tribunal failed to carry out the "real chance test" as per sec. 91R(2)(a) of the Act (failing to take into account all the surrounding circumstances of the seriousness and real likeliness of the threat to kill the Applicant), when it concluded: "The Tribunal finds that, while the genesis of the fighting on 26 June 1999 was religious dispute, the problems which the applicant faced, and might [possibly] face in the future have arisen because a man was killed in that fighting". … B. That the learned Federal Magistrate failed to consider the Applicant's Solicitor's argument that the Tribunal failed to assess the Applicant's claims in a constructive and articulate manner as per sec. 415 of the Migration Act due to [the] following finding: "While the motivation of the accusers may have had a religious basis, the Tribunal finds that the Police acted to charge the applicant only because a serious crime had obviously been committed and people claiming to be witnesses implicated the applicant. In these circumstances, the Tribunal finds that the action of the Police and other authorities did not amount to persecution towards the applicant". …' 14 In support of the first ground, the appellants submitted that the Federal Magistrate erred by failing to consider their contention that 'the Tribunal's conclusion was in conflict and contrast to its own finding that the [appellant husband] had suffered persecution and will suffer the same in the future and therefore amounted to a jurisdictional error committed by the Tribunal'. In relation to the second ground the appellants submitted that his Honour erred by failing to consider that the appellants' complaint of persecution was not against the police or the authorities, but rather 'against the "Deobandi" group who had implicated the [appellant husband] in that serious crime and was responsible for arrest and remanding the [appellant husband] by the police'. The appellants went on to contend that the 'above passage [namely, the paragraph of the Tribunal's reasoning appearing below ground 'B' of the appellants' notice of appeal] had irrelevantly addressed the motives of the police rather than the motives of the Deobandis, for accusing the [appellant husband], thereby the Tribunal revealing a misapprehension of the [appellants] claims'. The appellant husband appeared before the Court at the hearing of the present appeal and was unrepresented. He was unable to add anything of relevant significance to the grounds of appeal. 15 The Minister submitted that no error occurred in the reasoning of Smith FM in dismissing the appellants' first ground of appeal; reference was made in that regard to his Honour's reasoning at [47] in support of that proposition, which appears as follows: 'The Tribunal was plainly aware in that passage that the applicant claimed that all the harms he suffered, including the criminal prosecution and his feared harms from the Deobandis, arose from his affiliation with his Muslim sect.' The Minister further submitted that the Tribunal assumed a Convention nexus for the feared harm from the Deobandis, however it concluded that the likelihood of such harm was 'remote' and that, in any event, the appellant husband could avail himself of effective State protection and that therefore the appellant husband's fear that the Deobandis wished to harm him was not well founded. Thus, 'when the passage is read in context, there was nothing contradictory or inconsistent in the reasoning of the Tribunal and the Tribunal has not misapplied the test set out in s 91R of the Act'. I find force in that submission made by the Minister. 16 In regards to the second ground of appeal, the Minister submitted that the Federal Magistrate clearly demonstrates at [39]-[41] of his reasons for judgment that the Tribunal did not misapprehend the appellant husband's claims and that the consideration of the motive of the police was 'relevant because it provided an explanation as to why the appellant was charged and arrested, which in turn led to the Tribunal's conclusion that the appellant had not' and would not suffer harm from the Deobandis for a Convention reason. The Minister went on to contend that the Tribunal found that there was 'no evidence that the prosecuting authorities were complicit in the Convention motive of the…Deobandis, and that the State did not condone or tolerate the harm but rather that the appellant could avail himself of effective State protection for the harms claimed to have been inflicted by non-State agents'. 17 I find force in the submissions made by the Minister in regards to both grounds of appeal put forward by the appellants. I can find no conceivable error of law in the reasoning of Smith FM below, nor can I find any jurisdictional error arising from the reasoning of the Tribunal. The appeal must therefore be dismissed with costs. In accordance with the Minister's submissions, I order that the name of the first respondent be amended to 'Minister for Immigration and Citizenship'. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 24 April 2007 First Appellant appeared in person. Counsel for the First Respondent: R A Pepper Solicitor for the First Respondent: Blake Dawson Waldron Date of Hearing: 1 March 2007 Date of Judgment: 24 April 2007