SZLZP v Minister for Immigration & Citizenship [2008] FCA 1808

FEDERAL COURT OF AUSTRALIA

SZLZP v Minister for Immigration & Citizenship [2008] FCA 1808

Migration Act 1958 (Cth) s 430

Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 cited

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited SZLZP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1614 of 2008

MARSHALL J

28 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1614 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLZP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 28 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal, fixed at $2,400. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1614 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLZP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE: 28 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate delivered on 26 September 2008 (SZLZP v Minister for Immigration and Anor [2008] FMCA 1339) which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa. 2 The appellant is a citizen of India, and his claim for refugee status is based upon a fear of persecution arising out of his and his father's political opinion. 3 The appellant is a Muslim from the State of Kerala in India. He says that as a student he joined the student wing of the Communist Party of India (Marxist) (CPI(M)). He states that his father left the CPI(M) and joined the Communist Party of India (Marxist-Leninist) (CPI(ML)) in protest at the corrupt leadership of the CPI(M). The appellant followed his father and also joined the CPI(ML). He says that members of the CPI(M) took the appellant to an unknown location and tortured him. He claims that these CPI(M) members demanded that the appellant's parents leave the CPI(ML) and return to the CPI(M). He then says that he was released after 2 days with a warning that he would be kidnapped and tortured again if his parents continued to support the CPI(ML). He claims that he fears to return to India because the CPI(M) members will attempt to kidnap him in order to coerce his parents to return to the CPI(M). He also asserts that the police in India will not provide him with adequate protection. 4 The appellant's grounds of appeal appear not to have been drawn by a lawyer, and do not advance any new grounds which were not relied on below. The grounds are not particularised and lack any basis. He contends that (1) the Federal Magistrate 'failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the Judiciary Act 1903'; and (2) 'The Federal Court ought to hold that Honourable Magistrate erred in accepting that the Tribunal knew that the applicant will not face persecution if returned to country of origin.' 5 It appears that the appellant contends that the Federal Magistrate's decision is wrong in law because the Federal Magistrate failed to find that the Tribunal's decision was infected with jurisdictional error. 6 In the Court below the appellant advanced five grounds. Ground 1 contended that the Tribunal committed a jurisdictional error in so far as it made findings that were not open on the evidence before it. The appellant submitted that an applicant could not be expected to bring relevant evidence to prove his or her claim when leaving his or her country of origin. The appellant claimed that the Tribunal relied on country information provided by the country from which the appellant had escaped. The Federal Magistrate dismissed this ground. In doing so, the Federal Magistrate began by correctly observing that there exists no onus on the appellant to bring 'evidence in support of the circumstances for his departure from India': Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]. The Federal Magistrate held that this was not the substance of the Tribunal's findings when the Tribunal said: The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his claimed membership of CPI(ML). He has no documentary evidence of his father's approach to the police following the applicant's claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. 7 Whilst there is no onus on the appellant to produce evidence to the Tribunal, the Federal Magistrate correctly observed that 'it is for the applicant to advance evidence or argument that he wishes to be taken into consideration in support of his claim.' The Tribunal's findings were open to it. No jurisdictional error can be established on this issue. 8 Ground 2 contended that the Tribunal erred in law by failing to ask a question that it was required to ask. That was whether the Indian authorities provided a standard of protection that was comparable with international standards. The Federal Magistrate correctly dismissed this ground. The learned Federal Magistrate noted that the real issue was whether the Tribunal addressed the test with respect to the issue of State protection. After citing the relevant passage from the Tribunal's reasons that included advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that State protection in India is generally provided to persons who feel persecuted due to political reasons, the Tribunal gave him an opportunity to respond to the DFAT advice. The appellant chose not to do so. The Tribunal found that Indian authorities provided adequate and effective State protection, and it was open to it to reach that conclusion. No jurisdictional error exists with respect to this issue. 9 Ground 3 stated that 'the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or 'integers' central to the applicant claims; because the applicant was being questioned for number of hours without a break and felt stressed and intimidated.' The learned Federal Magistrate correctly dismissed this ground. In doing so, the Federal Magistrate relevantly said at [21]: The above claims are reproduced in point form in the Tribunal's decision under the heading "Claims and Evidence". The decision record indicates that the applicant affirmed that the main points of his written statement of claim were in effect summarised by the Tribunal. The Tribunal's decision does not expand to any significant effect the contents of that material…In the circumstances there does not appear to be any aspect of the applicant's claims that were not addressed in the Tribunal's decision record.