SZKNS v Minister for Immigration and Citizenship [2007] FCA 1914

FEDERAL COURT OF AUSTRALIA

SZKNS v Minister for Immigration and Citizenship [2007] FCA 1914

SZKNS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1764 OF 2007

EMMETT J

22 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1764 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 22 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant 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 NSD1764 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 22 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of India and arrived in Australia on 6 July 2006. On 31 July 2006 he applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (The Act). On 25 September 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa. On 18 October 2006, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate's decision. On 7 March 2007, the Tribunal notified the appellant that it had affirmed the delegate's decision. The appellant then commenced a proceeding in the Federal Magistrates Court on 23 April 2007 seeking Constitutional writ review of the Tribunal's decision. The appellant filed an amended application on 3 July 2007. 2 On 14 August 2007, the Federal Magistrates Court dismissed the application for judicial review. On 31 August 2007 the appellant filed a notice of appeal from the orders of the Federal Magistrates Court. On the hearing of the appeal today, the appellant appeared without legal representation, although he had the assistance of an interpreter. Before dealing with the grounds of review to the Federal Magistrates Court and the grounds of appeal before this Court, it is necessary to say something about the findings of the Tribunal and its reasons for those findings. 3 The Tribunal was satisfied that the appellant lived in Tamil Nadu and that he speaks Tamil and a little English. The Tribunal also accepted that the appellant is a Muslim. The Tribunal found that the appellant inherited his father's grocery store and coconut farm when he was about 16 years old and that, with the help of his grandfather, sold the grocery business and bought a second farm. He also operated a business in the local market. 4 The appellant became aware of theft of his coconuts from his second farm. In January 2005 he went with friends to observe his workers at night and took photos of them stealing his coconuts. He reported that to the police. The police did not take any action. They said that there was insufficient evidence of the theft. The Tribunal accepted that the appellant later became involved in a confrontation with his workers and that he was hit on the head with a stick by one worker during the confrontation. That required hospitalisation for some two days. 5 The Tribunal also found that, later in May 2006, the appellant, together with 60 to 65 Communist Party supporters, confronted the workers at the farm in an effort to stop the ongoing thefts of coconuts. At the farm there were members of the Rashtriya Swayemsevak Sangh (the RSS). Another confrontation occurred with the workers, which resulted in the death by stabbing of one of the Communist Party members. The police investigated the death and made several arrests. However, ultimately the police released the suspects as there was insufficient evidence to identify the attacker. 6 The appellant claimed that he was responsible for the conversion of 4 to 5 Hindu families to Islam and that he is now targeted by the RSS because he is a Muslim. He also claimed that his farm workers are Hindu, and are members of the RSS and that they are attempting to take away his wealth because he is a Muslim. The appellant claimed that the RSS are now threatening him because he converted Hindu families and is, therefore, seen as an enemy of the RSS. He also claimed that the RSS are persecuting him as a member of the Communist Party. The Tribunal summarised the matter by saying that the appellant claimed that he is seen as an enemy of the RSS, as having converted Hindu families to Islam and because of his speaking out against the RSS at Communist Party meetings. The Tribunal found that the appellant fears persecution by the RSS because of his religious and political affiliations and activities. 7 The Tribunal considered the issue of whether the harm feared by him amounted to "serious harm" within the meaning at s 91R of the Act. The appellant stated that he believed the RSS would engineer an accident in which he would be killed or seriously injured. He cited an incident when he was knocked over by a bike. However, without any corroboration, the Tribunal did not accept that that was done deliberately, or by the RSS as the appellant claimed. The Tribunal found that the other threats that the appellant had received to date have only ever been oral threats. Those threats were vague and unspecific and had not been acted upon, despite the fact that the appellant has been associated with Hindus and members of the RSS in his village for some years. 8 The Tribunal found that the harm the appellant may face on return to his local area would amount to serious harm and that there is a real chance that the RSS would seek to inflict such harm upon him. The Tribunal was satisfied that there was a real chance that the RSS would seek to inflict serious harm for an essential and significant reason of religion and political activity. 9 However, the Tribunal then considered the question of whether or not the appellant would be able to access adequate state protection if he returned to Tamil Nadu. The Tribunal referred to the evidence by the appellant about his reporting the theft of coconuts to the police and the police activity in relation to the death of the person killed at the farm. The Tribunal considered that, because the police in fact responded to both incidents, that was evidence that there would, in fact, be state protection available. The reason why the police took no further action was lack of evidence. The Tribunal considered that the appellant had not provided any independent information as to lack of state protection in Tamil Nadu, in relation either to Muslims or Communist Party members. The Tribunal was unable to find any information to indicate that state protection would be withheld if the appellant faced harm for a Convention reason. The Tribunal, therefore, concluded that the appellant would have access to adequate state protection against harm from the RSS. 10 The Tribunal found that the information available to it suggests that Indians are free to move within the country, with the exception of two states. The independent country information available to the Tribunal indicates that some Indian states have a significant Muslim population. Since the change of government in 2004 there has been a marked improvement in conditions for freedom of religion in India. The Bharatiya Janata Party (BJP) is no longer in power in India and the current government is working towards religious tolerance. The Tribunal, therefore, did not accept that all Muslims in India face a real chance of persecution for reasons of their religion on the basis of sporadic accounts of communal violence in different parts of the country. 11 The Tribunal stated that the relevant standard is not a perfect standard. The state is not required to provide a guarantee of protection, rather it is required to provide an appropriate standard of protection, including a reasonably effective and impartial police force. The Tribunal found that the appellant would be afforded adequate state protection, according to that standard. The Tribunal concluded, therefore, that the appellant does not have a well‑founded fear of persecution in Tamil Nadu and, therefore, does not have well-founded fear of persecution in relation to India as a whole for reasons of his religion, or political opinion. 12 Nevertheless, the Tribunal also considered the issue of whether the appellant could relocate to another part of India, to avoid persecution by the RSS or by the BJP. Based on the county information available to it, the Tribunal did not accept that language difficulties on the part of the appellant would be a real barrier to relocation in other areas of India where Tamil is a major language. The Tribunal considered that the appellant's evidence indicated that he and his family have financial resources in India, which would provide him with sufficient financial resources to relocate within India. The Tribunal observed that the appellant does not have dependants who require him to remain in Tamil Nadu, as evidenced by the fact that he came to Australia without any dependents. The Tribunal, therefore, concluded that it would be reasonable, having regard to the appellant's circumstances, for him to relocate to one of the number of other areas in India, in order to avoid persecution. 13 In his original application to the Federal Magistrates Court the appellant raised three grounds as follows, which may be summarised as follows: (1) A breach of the laws of natural justice occurred, insofar as the Tribunal failed to comply with s 424A of the Act. (2) The Tribunal left out individual evidence of the appellant's claim and failed to look at his claim as a whole. (3) The Tribunal failed to give natural justice. 14 In his amended application several grounds were mentioned as follows: "(1) That the decision of [the Tribunal] was effected [sic] by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or 'integers' central to [the appellant's] claims.