SZJTD v Minister for Immigration and Citizenship [2007] FCA 1314

FEDERAL COURT OF AUSTRALIA

SZJTD v Minister for Immigration and Citizenship [2007] FCA 1314

SZJTD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 943 OF 2007

MANSFIELD J

8 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 943 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 8 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for adjournment is refused. 2. The appeal be dismissed. 3. The appellant pay to the first respondent costs of the appeal. 4. Costs of the first respondent be fixed in the sum of $2,500. 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 943 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE: 8 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is an Indian national now aged 33. He is of Rajput ethnicity and of the Hindu faith. In the years preceding his coming to Australia, he worked as a farmer on his family property comprising about 25 acres of land. He came to Australia on 10 October 2005. Some months later, on 30 May 2006 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). A delegate of the first respondent refused that application on 20 June 2006. The delegate's decision was reviewed by the Refugee Review Tribunal (the Tribunal) and on 17 October 2006 the Tribunal affirmed the decision not to grant to the appellant a protection visa. 2 The appellant applied to the Federal Magistrates Court for an order quashing the decision of the Tribunal. To succeed in that, the appellant had to demonstrate that the Tribunal had somehow erred in a significant way going to its jurisdiction to have made the decision which it did. Neither the Federal Magistrates Court, nor this Court on appeal, has the power simply to re-hear all the evidence and re-decide the facts. The Federal Magistrates Court and on appeal this Court, has the function of reviewing the processes of the Tribunal to make sure that those processes have been undertaken according to law. 3 That obligation includes complying with the procedural steps which the Act imposes on the Tribunal and ensuring that the Tribunal has addressed the claims made before it, given genuine and proper consideration to those claims and made a decision in relation to those claims. The Federal Magistrate was satisfied that the Tribunal had carried out its functions according to law and so it refused to set aside the Tribunal's decision. The appellant now appeals to this Court from that decision. In the course of his submissions on the appeal, the appellant raised a matter not in his notice of appeal. This concerned the refusal of the Federal Magistrate to have regard to an affidavit of the appellant sworn on 18 April 2007 which enclosed five documents apparently confirmatory of matters that he had asserted to the Tribunal, and five further pages faxed on 26 April 2007 also containing assertions apparently from persons confirming parts of what the appellant had told the Tribunal. 4 I have assumed that the first annexure to the affidavit has that character, although it is in the Hindi language and has not been translated. The fifth document annexed to that affidavit is a medical certificate of Dr Jaswall apparently certifying that the appellant's father had heart disease and that he had died on 9 May 2006. The appellant in his evidence to the Tribunal, as recorded in the Tribunal's reasons, told the Tribunal that his father would pass away if it did not grant to him a protection visa. That hearing before the Tribunal took place on 5 October 2006 so there appears to be some inconsistency between what the appellant told the Tribunal and that medical certificate. It may be explained by the medical certificate relating to the death of the appellant's uncle, to which he also referred. Nothing turns on that, as the medical certificate in either event does not advance the appellant's claim to refugee status. 5 In the course of discussing those matters, the appellant also sought a further adjournment of this hearing to get further information which he said would be confirmatory of the claims he made to the Tribunal. I shall deal with what amounted to an adjournment application and an application to amend the grounds of appeal to add a complaint that the Federal Magistrate did not permit that additional material to be adduced on the hearing before the Federal Magistrate together. I refuse the adjournment and I do not permit the putative amended ground of appeal because in my view, no purpose would be served by those steps. 6 I appreciate that the appellant, not having had the benefit of legal advice, may not have understood the need to have put that matter in his notice of appeal, but the problem with the proposed material is that it is of not of a character which can show that the Tribunal erred in a way which goes to the exercise of its jurisdiction. It is material which, if it had been produced to the Tribunal, would have been relevant to the things it had to consider. Indeed, as the Tribunal pointed out at a number of points in its reasons, it was concerned that the appellant had not produced corroborative material in respect of a number of his claims when that corroborative material might reasonably have been available to him. 7 The Tribunal's reasons record that, towards the end of the hearing, it asked the appellant why he was not able to produce any evidence to support his claims and his response that "there was a lot of persecution going on, he could not go anywhere for they would kill him." To produce further evidence after the hearing, which may have been received by the Tribunal and helped it to make its factual findings, does not demonstrate that the Tribunal in proceeding on the evidence it had and reaching the conclusions which it did, engaged in a process which was beyond its jurisdiction or involved error on its part in a way which went to the proper exercise of its jurisdiction. 8 The Federal Magistrate, rather briefly, said that the documents concerned were not admissible. I infer that that is a laconic way of saying what I have said at a little more length. On that basis, the Federal Magistrate did not err in refusing to have regard to that material. And because it was not presented to the Tribunal, the Tribunal did not err in proceeding to make its findings of fact and reach its conclusions on the material it had available to it. The application for a protection visa was made on 30 May 2006. He told me today that he could not get that evidentiary material earlier because his father was not able to help him due to him passing away, but there was then some months or more in which that material could have been assembled even if his father had died on 9 May 2006. 9 If, on the other hand, as the appellant apparently told the Tribunal, his father was ill but still living at the time of the Tribunal hearing, either his father or other members of his family could have procured that material to support him. The additional material comes from his wife, his father dated 28 February 2007, two of his brothers and two other persons. There is no sufficient reason produced either in oral submissions, assuming I accept them, or in evidence, as there is none, as to why that material was not adduced before the Tribunal. 10 I will now turn to consider the claim in the notice of appeal and in the light of the Tribunal's reasons. The appellant claimed that his life was threatened and he could not safely return to India because of his political beliefs and his involvement in a political party, the Indian National Lok Dal Party. The Tribunal accepted that he was a member of that party, that he campaigned for that party in his local area and that, although he is not an office bearer or major spokesman for that party, he would go to villages and talk to people about their problems and endeavour to gain their support. 11 It did not accept that, as the appellant claimed, his activities prompted a series of aggressive incidents towards him. Those incidents included a report that in June 2005 he was shot at by members of the Congress Party at a petrol station. The Tribunal did not accept that claim for reasons which it explained, including the vagueness of the description of the incident, the absence of any verification of the incident, either alone or in conjunction with the other incidents, in the media or by any other person, and its implausibility. The appellant claimed to have been attacked again while staying at Dehra Doon when a car with a red light came to his house when he was not home. 12 The Tribunal noted that that incident was also not confirmed by any direct evidence and the appellant's description of it, necessarily hearsay, was vague and unconvincing. He complained of his wife being harassed when at Utranachal but the Tribunal regarded that claim as vague, unexplained and implausible. He complained of again having been shot at when he went to his brother's house sometime later. Again the Tribunal was sceptical of that claim as it was not confirmed by those it reasonably expected could have confirmed it. The appellant complained of a further incident when he said he was fired at when he visited Bihar. The Tribunal regarded that claim as vaguely expressed and as implausible. 13 There were a number of other matters which the Tribunal identified as details of the appellant's claims which it rejected as inherently improbable and because of the lack of detail concerning them. It said: The applicant describes himself both as "just a member" and at another time as an "ordinary member" and an "ordinary person". The Tribunal does not accept that that someone who is not a high ranking or high profile member of what is now a minor opposition party, should attract such attention. It was not believable that he as a farmer, and ordinary member of a political party should be subject to persistent shootings (which were never reported), and that he was followed to Dehra Doon, Bihar and parts of India he visited, and that his photograph had been widely distributed to these parts of India. That he should be shot at and beaten up by both Congress workers and the police so regularly, without any of the incidents gaining any reportage, strained the credulity of the Tribunal. There is no supporting evidence or documentation of any kind that backs up the assertions. The Tribunal found it hard to accept on the information provided that the applicant's father took ill because of the original incident, and that his uncle died because of the visa refusal, and that his father will die if he does not gain a Protection visa. 14 The Tribunal noted the independent country information confirming instances of violence associated with elections in the appellant's state of Haryana but that there were structures within India by which the authorities dealt with such conduct and that there was no evidence of persistent violence by Congress Party workers in that state nor of police violence to members of political parties. 15 The Tribunal therefore, noting that the appellant described himself as an "ordinary person" and an ordinary member of his political party who did not claim to hold high office or to be a major political figure that might attract national attention from a rival political party, said that it was not plausible that the Congress Party would mount a national campaign against such a person from a rural village, in the range of geographic locations to which the appellant had referred. It found that there was no real chance that the appellant would be persecuted by members of the Congress Party or workers associated with it or by the police in India if he were to return to India. 16 It also expressed an alternative reason why the appellant's claim would not succeed. That is, that in any event, it would be reasonable for him to relocate to another part of India if he genuinely felt fears for his safety in Haryana. It noted that he is married with a family and had moved about his home state of Haryana with apparent ease. It noted that he is a successful farmer. It noted that the Lok Dal Party does not exist in other states of India, so that if he were able to move there was no real chance he would be persecuted for a Convention reason in those other states. 17 The grounds upon which the appellant sought judicial review of the Tribunal decision before the Federal Magistrate were in much the same terms of the current grounds of appeal. I have carefully considered the reasons of the Federal Magistrate. I agree with the reasons for rejecting those three grounds of appeal. I will deal with them briefly. 18 Firstly, it is said that the Federal Magistrate and the Tribunal did not consider all of the appellant's reasons for seeking a protection visa. In my view, the Tribunal has considered each of the matters that the appellant raised and has addressed them. Underlying the asserted facts is his claim to have a well-founded fear of persecution by reason of his political beliefs and activities. The Tribunal specifically addressed that claim and rejected it for the reasons it gave. 19 The second ground of appeal is that the Tribunal did not do proper research concerning the situation in India. Although the Tribunal is empowered under s 424 of the Act to make enquiries of its own motion, it is not obliged to conduct particular research suggested by an individual visa applicant; see e.g. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252; SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197. In this instance the appellant in any event has not suggested what additional enquiries should have been undertaken other than seeking the corroborative evidence of the appellant's claims which, as the Tribunal pointed out to him, he had not produced. 20 When the Tribunal raised that with the appellant, he is not reported as having said that he could not carry out those enquiries himself and, in the circumstances, the Tribunal did not err in law in not pursuing such enquiries. The Tribunal did in fact make its own independent enquiries about the general situation in India and referred to it in its reasons and conclusions. That included its assessment of the intermittent violence in Haryana state and elsewhere in India associated with elections. The way in which the Tribunal sourced that material and used it was in accordance with the proper exercise of its functions. See for example the discussion of the Full Court (Gray, Tamberlin and Lander JJ) in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. 21 The third ground of appeal is that the Tribunal and the Federal Magistrate did not consider the appellant's personal and family hardships. To the extent to which that involves an assertion that they did not consider the material which the appellant had adduced to the Tribunal, I have already rejected that claim. Personal hardship or family hardship removed from the criterion specified in s 36(2) of the Act is not material which can be used to satisfy that criterion. In other words, it is not material which can tend to support that the appellant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as used in the Act). 22 The appellant has not identified any other way in which that ground of appeal might demonstrate jurisdictional error on the part of the Tribunal or legal error on the part of the Federal Magistrate. As the appellant has said in submissions that he himself finds it too difficult to identify any other mistakes of law in the reasons of the Tribunal, I have carefully considered those reasons. I do not otherwise see that the Tribunal erred in law in the way in which it addressed the appellant's claims. 23 For those reasons, I consider that the appeal should be dismissed. 24 I order that the appellant pay to the first respondent costs of the appeal. The first respondent has asked for those costs to be fixed in a lump sum of $2,000. Bearing in mind the work involved in the preparation of the appeal, including the appeal book, the compliance with the directions of the Court, the work involved in briefing counsel, the preparation of the outline of submissions, and counsel's attendance today, in my view, the amount claimed is an appropriate one. I fix the costs of the first respondent in the sum of $2,500. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.