SZNGP v Minister for Immigration & Citizenship [2009] FCA 975

FEDERAL COURT OF AUSTRALIA

SZNGP v Minister for Immigration & Citizenship [2009] FCA 975

SZNGP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 550 of 2009

JESSUP J

17 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 550 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNGP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE OF ORDER: 17 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the respondent Minister, fixed in the sum of $3,413. 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 550 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNGP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 17 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 22 May 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 January 2009. In that decision the Tribunal affirmed an earlier decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa made on 13 October 2008. 2 The appellant arrived in Australia on 28 July 2008 and applied for a protection visa on 31 July 2008. He claimed to fear persecution in India by reason of his religion and his political activities. He claimed, amongst other things, that he had been attacked by members of the Rashtriya Swayamsevak Sangh ("the RSS") in 2002 and detained for seven days in 2003. 3 According to the Federal Magistrate, the Tribunal found that there was an underlying truth in many of the assertions made by the applicant but, in effect, that the applicant portrayed the events on which he relied in a way which mischaracterised or exaggerated their relationship with his religion or political views. His Honour noted that the Tribunal found that the applicant had exaggerated certain aspects of the facts with respect to his role and experiences in the membership of Muslim associations, that the applicant had not lost staff in his business due to pressure from the RSS, that a traffic accident in which he was involved was not intentionally caused by the RSS, that contrary to the assertions of the applicant the police did take seriously an incident in May 2008 when the applicant's vehicle was attacked by a group of people, that the conversion of certain villagers to Islam was not the doing of the applicant, that the applicant had not been detained about a fire in an RSS office but only questioned, that the harassment suffered by the applicant in May 2008, although done because he was a Muslim and perceived to be of means and worth by Hindus, was not serious harm amounting to persecution, and that, if otherwise the applicant's fear of harm were well founded, it was reasonable and practicable for him to relocate to another part of the region where he lived or elsewhere in India. 4 The first ground upon which the applicant relied in the Federal Magistrates Court was as follows: The Refugee Review Tribunal failed to exercise its duty under the Migration Act not to consider my political involvement and consequent persecution; As stated, this ground does not make sense. His Honour interpreted it as though it amounted to an allegation that the Tribunal had failed to exercise its duty to consider the appellant's political involvement and persecution. The appellant provided particulars of this ground in the Federal Magistrates Court as follows: The Tribunal did not consider my political involvement and consequence [sic] persecution that: (i) The Tribunal did not consider my involvement with the TMMK and later on with the TNTJ, and (ii) The Tribunal did not consider that there was a strong possibility to be persecuted by the RSS on return in India. The Federal Magistrate undertook a careful and systematic review of the written reasons for decision of the Tribunal and rejected the appellant's submission that it had not considered his involvement with the TTMK and the TNTJ. His Honour noted, amongst other things, that the Tribunal accepted that he had been a member of both organisations. 5 With respect to the second aspect of the particulars given by the appellant, the Federal Magistrate considered that it might be understood in two different ways. The first was by way of a challenge to the Tribunal's factual conclusion that the appellant did not face a risk of persecution by the RSS were he to return to India. His Honour considered this to be a challenge to a finding of fact made by the Tribunal, and since it was a finding that was open to the Tribunal on the evidence before it and not the result of any internal contradictory reasoning, his Honour found that there was no substance in the ground. This aspect of the particular might also, in his Honour's view, be understood as an allegation of error constituted by a failure to consider whether the appellant faced a risk of persecution by the RSS. His Honour held that the reasons of the Tribunal made it clear that it did consider that question and rejected the appellant's claims on the point. In the circumstances, the Federal Magistrate rejected the first ground of the application before him. 6 The appellant's second ground in the Federal Magistrates Court was as follows: The Refugee Review Tribunal made a wrong assumption about the applicant's persecution. Particulars of this ground were given as follows: The Tribunal made a wrong assumption that: (i) The appellant's fear of persecution in India for the reason of his political opinion, his religion or any other Convention related reason is not well founded. (ii) the Tribunal does not accept that the applicant's association with Muslim League, his profile and his activities give rise to a real chance of persecution if he were to return to India and reside in Mumbai in the reasonably foreseeable future. The Federal Magistrate rejected the assertion that the findings of the Tribunal had been based upon assumptions rather than factual conclusions drawn from the evidence. His Honour observed that the Tribunal's decision met the criteria set out in s 430 of the Migration Act 1958 (Cth) and was unaffected by jurisdictional error in respect of its logical and evidentiary foundations. His Honour went further, however, and noted that the written submissions filed on behalf of the appellant revealed that, when the appellant described the Tribunal's decision making process as the making of a "wrong assumption", what he really meant was that the Tribunal had reached a wrong conclusion. His Honour held that an allegation so understood must fail, because it related entirely to a question which fell within the jurisdiction of the Tribunal, and not within the jurisdiction of the Federal Magistrates Court. His Honour also observed that the suggestion in the particulars to this ground that the appellant had an association with the Muslim League bore no factual relationship to his claims. His Honour said that there was no record of the appellant having ever claimed to be a member of the Muslim League. 7 The third ground relied upon by the appellant before the Federal Magistrate was as follows: The Refugee Review Tribunal failed to realise the reality of relocation in the context of applicant's particular circumstances. This ground was particularised as follows: There was no evidence to support the Refugee Review Tribunal's finding that: (i) in all the circumstances, it would be reasonable and practicable for the applicant to safely relocate to a different part of India. The Federal Magistrate found that the Tribunal turned its mind to the question of relocation and, in particular, to the factual allegations made by the appellant in that regard. In the circumstances, his Honour also dismissed that ground. In doing so, he noted that the possibility of relocation had, in effect, been used by the Tribunal as an alternative basis for its conclusion that any fear of persecution which the applicant did have was not well founded, because he had not established that he would legitimately have such a fear in any part of his own country, India. Therefore, in his Honour's view, even if there had been some jurisdictional error on the part of the Tribunal in relation to the relocation point, its decision as a whole would not be jurisdictionally vitiated, since there was no valid attack upon its primary findings that the appellant did not have a well-founded fear of persecution in the Convention sense. 8 In the circumstances, the Federal Magistrate held that jurisdictional error on the part of the Tribunal had not been demonstrated. 9 The grounds set out in the appellant's notice of appeal in this court read as though the Federal Magistrate's decision did not exist. In terms and in substance, they are a direct attack upon the decision of the Tribunal. Indeed, as counsel for the Minister has pointed out, they seek to make the very same attack as was unsuccessful before the Federal Magistrate. Additionally, the written submissions upon which the appellant relies, according to counsel for the Minister, bear a striking similarity to those which he made before the Federal Magistrate. 10 I received oral submissions from the appellant this morning. They consisted almost entirely of an articulation of the factual circumstances by reference to which the appellant claims to fear persecution if he were obliged to return to India. He said nothing about the judgment from which he appeals. I specifically drew his attention to that circumstance and invited him to tell me whether that judgment was wrong or that the Federal Magistrate had made a mistake in some way. His response was that he was not knowledgeable about the law and had nothing further to add on that subject. 11 The jurisdiction which this court exercises in cases of this kind is an appellate one. The Federal Magistrates Court has jurisdiction to review the decision of the Tribunal for jurisdictional error. The jurisdiction of this court is properly invoked only where it is alleged that the court of primary jurisdiction has made an error of some kind. Manifestly, this is not such a case. There is no allegation, nor even suggestion, of error in the Notice of Appeal, in the appellant's written outline of submissions, or in the oral submissions which I have received from the appellant this morning. I have read the reasons of the Federal Magistrate and I accept the submission made on behalf of the Minister that there is no apparent error contained therein. For those reasons, the appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.