SZLRO v Minister for Immigration and Citizenship [2008] FCA 833

FEDERAL COURT OF AUSTRALIA

SZLRO v Minister for Immigration and Citizenship [2008] FCA 833

SZLRO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 344 of 2008

GRAHAM J

19 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 344 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLRO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 19 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent Minister's costs. 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 344 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLRO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 19 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant was born in Ichapur in West Bengal, India on 5 March 1975. In 1980 the family moved to Nadia in West Bengal. The Refugee Review Tribunal ('the Tribunal') found that the appellant was identified as being within the Namasudra caste, which is one of the lower castes in India. The appellant attended school in Nadia and continued his studies through to year 12. After that he gained admission to the Bagula Sri Krishna College where he studied for and completed a Bachelor of Arts degree. He proceeded to work for his elder brother in his elder brother's clothing business. Later he established his own clothing business. Thereafter he became involved in a road construction business. 2 On 16 March 2006 he obtained an Indian passport. In September 2006 he travelled from India to Singapore, via Bangladesh, and then to Malaysia, from whence he travelled to Thailand, returning to India via Bangladesh. On 12 February 2007 he secured a three month Australian visitors visa. On 16 March 2007 he departed from India, and on the following day, 17 March 2007 he arrived in Australia, travelling on his Indian passport and entering the country under his Australian visitor's visa. On 26 April 2007 he applied for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 15 May 2007. On 7 June 2007, the appellant applied to the Tribunal for review of the Minister's delegate's decision. 3 The appellant attended a hearing before the Tribunal on 14 August 2007. On 22 October 2007 the Tribunal decided that the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa should be affirmed. 4 On 26 November 2007 the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. That application was supported by an affidavit affirmed by the appellant on 26 November 2007 which included: '6. The Tribunal did not accept me as a credible witness and refused my claims. 7. The Tribunal did not consider the false cases against me which will risk my life on my return back to India.' 5 On 4 February 2008, the appellant filed an Amended Application in which the grounds relied upon were as follows: '1. The Refugee Review Tribunal failed to exercise its jurisdiction under the Act: Particulars: A. The Tribunal did not consider the possibility of my persecution that I could be disadvantaged and discriminated because of the Scheduled Caste by making the following comment: i) I do not accept that such discrimination would be serious enough to constitute persecution within the meaning of the Convention; and ii) The Tribunal totally ignored my involvement with the "Mathua Sammelon" which promoted the rights of scheduled casts (sic) in India. 2. The Refugee Review Tribunal failed to consider my persecution on the basis of my political affiliation in my activities with the Trinamool Congress: Particulars: A. The Tribunal failed to consider my persecution on the basis of my political involvement. The Tribunal wrongly assumed and made the following comment: i) I do not accept that he suffered any mistreatment for reasons of his political opinion; and ii) I do not accept that he faces any harm if he returned to India now or in the foreseeable future for reasons of his political opinion.' 6 The Amended Application was heard and determined by Scarlett FM on 21 February 2008. His Honour ordered that the application be dismissed and that the appellant pay the respondent Minister's costs, fixed in the sum of $3,400.00. At paragraphs [19] – [23] his Honour addressed the appellant's ground number 1, and at paragraphs [24] – [27] he addressed ground 2. At [23] his Honour said: 'I am satisfied that the Tribunal did indeed consider the Applicant's claim of a fear of persecution for reason of his membership of a Scheduled Caste. It follows that the Applicant's first ground does not succeed.' In respect of ground 2, his Honour said at [27]: 'It matters not whether the Court, in considering that same evidence, would have arrived at a different conclusion. The Court does not decide the factual matters, the Tribunal does. I am satisfied that there was evidence before the Tribunal upon which it was possible for the Tribunal to make the factual findings that it did, and reach the conclusions that it did based on those factual findings. Consequently, the Applicant's second ground fails.' 7 On 12 March 2008, the appellant filed a Notice of Appeal in this Court, appealing from the whole of the judgment of Scarlett FM, given on 21 February 2008. The grounds of appeal relied upon were expressed in the same terms as the grounds upon which constitutional writ relief had been sought as set out above. 8 The appellant filed an outline of submissions on 12 May 2008. When invited to address the Court in respect of the two grounds specified in the Notice of Appeal, he indicated that he had nothing further to say beyond what was recorded in his written submissions. When asked whether there was anything further that he wished to put to the Court, he indicated that the Tribunal had, in effect, accepted that he was, because of his caste, likely to suffer discrimination were he to return to India but that such discrimination would not constitute persecution within the meaning of the Convention. He further submitted that he would be harmed and killed if he were to return to his own country because of his political opinion, contrary to the finding of the Tribunal in relation to that aspect of the matter. 9 I have had the advantage of reading the appellant's outline of submission and also an opportunity to consider the decision of the Full Court of this Court in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [33] to which the outline refers. It does not seem to me that the case referred to is of any relevance in relation to the matter presently before the Court. The Tribunal's decision in this matter does not demonstrate a failure by the Tribunal to ask itself the right question or a failure to consider relevant considerations that it was bound to consider and there was no apparent illogicality which might manifest reviewable error. 10 In his application for a Protection (Class XA) visa, the appellant indicated that he had left India 'to escape persecution related to my ethnicity and political belief'. 11 There was further matter included in response to questions 41 to 44 of the relevant application form which it is unnecessary to record in detail in these reasons. Suffice it to say that each of the relevant questions including question 40 has the words 'refer Statement of Claims for detail' added to them. That is a reference to a closely typed 6 page document, bearing the heading 'Statement of Claims'. The statement records the political associations which the appellant claimed to have had with the Student Federation of India, a student organisation of the Communist Party of India – Marxist, and involvement with 'Mathua Sammelon' an organisation to establish the rights of Schedule Castes in India, and also the claimed involvement of the appellant with the Trinamool Congress, a party established by Mamata Banerjee in 1997 as a breakaway party from the Congress (I) Party. 12 In his application, the appellant referred to activists in the Trinamool Congress being killed by people within the Communist Party of India – Marxist acting in collaboration with BJP. The appellant claimed to have been targeted by a terrorist group established by Amal Bose, known as 'Amal Bahini' and having been physically and verbally abused and harassed on a few occasions for his apparent association with the Trinamool Congress. He made claims of having been severely beaten when attacked by Communist Party of India – Marxist activists on 22 September 2006 on what would appear to have been some four days after he returned from his overseas trip to Bangladesh, Singapore, Malaysia and Thailand. The appellant recited activities and demonstrations that apparently occurred on 14 and 16 March 2007, the latter day being the day on which he left India for Australia. 13 In his 'Statement of Claims' the appellant said that he came to Australia to escape persecution for his political beliefs. He did not mention, in that context, anything to do with his concerns about persecution arising from discrimination of persons of his caste. The Tribunal's 'FINDINGS AND REASONS' recorded that it did not accept the appellant's evidence that he was, or ever had been, a member of the Student Federation of India or the Communist Party of India – Marxist, nor did it accept that he became a member of the Trinamool Congress or an office bearer of that party. 14 The Tribunal made a series of consequential findings that it did not accept that the appellant was beaten and mistreated for reasons of any association with the Trinamool Congress. It did not accept that the appellant had complained to the police about an attack upon him which the police had refused to respond to appropriately. The Tribunal did not accept that the appellant had any false cases lodged against him, nor did it accept that the appellant knew any, "secrets," about the office bearers in the Communist Party of India – Marxist which would put him at risk if he were to return to India. 15 The Tribunal relied upon the fact that in his time in India the appellant moved from Calcutta to Bagula, and then to New Delhi and back to Bagula before he left India. It also relied upon his return to Bagula after he came back from his overseas trip. The Tribunal made findings concerning the ability of the appellant to secure a tertiary education and to obtain employment, which were not suggestive of any relevant discrimination against him for reason of his caste, and which had not been raised by the appellant at the Tribunal hearing until the Tribunal questioned the appellant about those matters. 16 The Tribunal did not accept that the appellant had suffered any mistreatment for reason of his political opinion and, further, found that he did not face any harm if he returned to India now, or in the foreseeable future for reasons of his political opinion. In relation to any discrimination against him by virtue of his caste, the Tribunal said: '… If the applicant returns to India I accept that he may face some discrimination involving some caste based social norms (not mixing with high caste persons) however I do not accept that such discrimination would be serious enough to constitute persecution within the meaning of the Convention. Thus, I do not accept that he faces a real chance of persecution for reasons of his membership of a Scheduled Caste if he returns to India now or in the foreseeable future.' 17 The circumstances in which it is incumbent upon the Minister to grant a visa, are relevantly set out in s 65(1)(a) of the Migration Act 1958 (Cth) when taken with s 36(2)(a) and s 91R of the Act and the terms of article 1A(2) of the Refugees Convention as amended by the Refugees Protocol referred to in s 36(2)(a) of the Act. It is not open to this Court to provide the appellant with a merits review in respect of the Tribunal's decision. I have no reason to doubt the correctness of the findings reached by the learned Federal Magistrate on the grounds advanced by the appellant in the Federal Magistrates Court of Australia and repeated again in this Court. 18 In my opinion, there was no jurisdictional error warranting the grant of constitutional writ relief. Accordingly, I would order that the appeal be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.