SZHSB v Minister for Immigration and Citizenship [2007] FCA 735

FEDERAL COURT OF AUSTRALIA

SZHSB v Minister for Immigration and Citizenship [2007] FCA 735 SZHSB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 436 OF 2007

RYAN J

15 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 436 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHSB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J DATE OF ORDER: 15 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as the second respondent. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs, to be taxed in default of agreement. 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 436 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHSB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 15 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 5 April 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. On 5 July 2005, a delegate of the first respondent ("the Minister") refused the application for a protection visa. On 1 August 2005, the appellant applied to the Tribunal for a review of that decision. 2 The appellant claimed to have been persecuted by Muslim fundamentalists and claimed that he and his family were Hindus, members of the Vishwa Hindu Parishad ("the VHP") and were politically affiliated with the Bharatiya Janata Party ("the BJP"). The appellant also said that he and his family had actively participated in programs to demolish the Barbri Mosque in 1992. After the demolition of the Mosque, the appellant claimed, Muslims in his local area had targeted his family and one of his cousins who had then fled to Australia. A further claim was that a monetary award had been offered for implicating the appellant in the Barbri Mosque incident, as a result of which he went into hiding in another state. However, Muslim persecutors followed him there and he could not file complaints against them for fear that they would then kill his brothers and sisters. 3 The appellant obtained a visa permitting travel to Malaysia where he lived, apparently, until 2004. While he was there, another riot occurred in India in 2002, in which, the appellant claimed, his wife was killed by miscreant Muslims who burned down his house, and at least three of his friends who had worked with him for the VHP were also killed. 4 In 2004, the appellant was planning to return to India when, according to him, things became worse in that country. He claimed that in the last elections, which the BJP lost, the Congress Party had been successful which brought about a power shift to Muslims who were starting to take revenge against VHP workers and attacked the appellant's family. The appellant stated that he could not travel to Malaysia as it was a Muslim country, and he feared that his association with the VHP or BJP would be revealed to Muslim Malaysians. He also claimed that relocation within India was not possible, as his photograph had been published in newspapers while he was demonstrating in favour of the VHP. He claimed that the resources of the Indian police were not sufficient to protect him against terrorist Islamic groups and that the police would, in any event, favour members of the Congress Party. 5 The Tribunal did not accept that the appellant was in danger of harm merely by virtue of his being an active member of the VHP. It noted that the appellant's home state had a majority Hindu population and found that his involvement with the demolition of the Barbri Mosque was "at best, tangential". As well, it saw no basis for believing that people would be looking for the appellant in relation to that incident thirteen years after the event. 6 The Tribunal further noted that the appellant had not returned to India until eight years after the destruction of the Barbri Mosque. Most importantly, the Tribunal found that the appellant had returned to India from Malaysia twice, including once for an extended period, which indicated that he did not have a genuine fear of persecution in India. When this apparent inconsistency was put to him, the appellant gave explanations which the Tribunal did not regard as credible. The Tribunal did not accept the appellant's claim to have suffered harm from Muslims, finding those claims to be general, extreme and unsubstantiated. The Tribunal found that, if the appellant felt insecure, he could reasonably move to another location in India, especially given his demonstrated ability to move, his education and his skills as an engineer. 7 Before the learned Federal Magistrate, the appellant relied on an amended application filed on 8 March 2006, which raised three grounds of review. First, it was contended that the Tribunal had made a jurisdictional error when it focused on the issue of credibility and failed to consider the other evidence and materials. Particulars of this ground repeated the claim in response to question 44 in the appellant's application for a protection visa, that he did not have protection from the Indian authorities and the local police. Secondly, the appellant asserted that the Tribunal had made a jurisdictional error by failing to correctly consider and apply the test of a well-founded fear of persecution, and, further, had misunderstood the appellant's case as completely relying on a letter sent by his wife, which had no apparent basis in the evidence. Thirdly, it was recited that the Tribunal had made a jurisdictional error in relying on other sources of available country information. 8 On 19 December 2006, the appellant filed written submissions which raised grounds in addition to those set out in his amended application. The new grounds imputed to the Tribunal bias, both actual and apprehended, rejection of oral evidence, failure to consider s 424A of the Migration Act 1958 (Cth) ("the Act"), failure to properly give effect to information given by the appellant, failure to properly follow the procedures required by the Act, contravention of the rules of natural justice and denial of procedural fairness. 9 At the hearing in the Federal Magistrates Court the appellant made submissions to the effect that his life was in danger and "people were looking for him". The learned Federal Magistrate held that the appellant's oral submissions did not reveal jurisdictional error on the part of the Tribunal and could not see how those submissions rose above a request for impermissible merits review. His Honour also adverted to the appellant's claim that the Tribunal had not considered his answers to question 42 in the protection visa application. However, he found that, on a plain reading of the Tribunal's decision, it had not failed to address those claims. It had considered the claim to fear harm by reason of membership of the VHP and also his fear of Muslim reprisals for the appellant's involvement in the destruction of the Barbri Mosque. 10 In relation to the second ground of the amended application, his Honour failed to detect any misunderstanding by the Tribunal of the test that it was required to apply, and further, was unable to find any reference in the Tribunal's reasons to any letter allegedly sent by the appellant's wife. Turning to the third ground, the learned Federal Magistrate observed that the Tribunal was entitled to rely upon country information and to use it in evaluating the appellant's claims, including making an assessment of his credibility. 11 The reasons below then addressed the grounds in the appellant's written submissions. His Honour found no contravention of s 424A of the Act, first, because the appellant had stated in submissions that; 'I brought the statements in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.' That statement, his Honour considered, correctly in my view, attracted the exception under s 424A(3)(b) of the Act. The second reason was that the information in the protection visa application had been put before the Tribunal at the hearing. That occurred when the appellant had given his passport to the Tribunal and had answered questions regarding the claims in his protection visa application in such a way as to bring the information so provided within the exception in s 424A(3)(b) of the Act. 12 His Honour could not see any jurisdictional error identified in the grounds relied upon by the appellant in his submissions nor detect any evidence of bias or illogicality. Rather, he found that the Tribunal had considered the appellant's oral evidence. As no jurisdictional error had been demonstrated, his Honour dismissed the application. 13 The appellant's notice of appeal to this Court raised the following seven grounds: '2. The Single judge of the Federal Magistrates Court in his Honours judgment delivered on 6th March 2007 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the judiciary Act. 1903. 3. The grounds in 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; Plaintiff S157/2002 Commonwealth of Australia [2003] HCA 1. (I interpolate to indicate that there is no ground numbered 5.) 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 Honour judgment delivered on 6th March 2007 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.' 14 On 30 March 2007, Deputy Registrar Farrell directed, amongst other things, that the appellant file and serve written submissions no later than five clear working days before the hearing date. The appellant has not complied with that direction, but, despite the difficulties caused by his omission, the Minister, through Ms McWilliam of Counsel, has filed detailed and helpful submissions analysing the reasons for decision of both the Tribunal and the Federal Magistrates Court. 15 On the hearing of the appeal, the appellant claimed that all papers and corroborative evidence on which he wished to rely had been destroyed when his house had been burned down in March 2002. Although invited to do so, the appellant, who appeared in person with the assistance of an interpreter, was unable to identify any error of law which vitiated the reasoning of the learned Federal Magistrate or impugned the decision of the Tribunal. He contented himself with contending that he had been prevented by circumstances from substantiating his case at the earlier stages of investigation and should be afforded an opportunity now to collect evidence from his former neighbours and local newspapers. 16 The appellant said that his notice of appeal to this Court had been prepared by a friend of a friend, and he personally had no understanding of its contents or the legal issues which it raised. I have examined for myself, with the assistance of the Minister's submissions, the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrates Court. I have been unable to detect, in either set of reasons, any of the errors imputed by the notice of appeal to the learned Federal Magistrate or, indeed, any jurisdictional error which would warrant setting aside the decision of the Tribunal. It follows, therefore, that the appeal must be dismissed with costs, and that will be the order of the Court. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.