SZCVB v Minister for Immigration & Multicultural Affairs

SZCVB v Minister for Immigration & Multicultural Affairs - [2007] FCA 33 - FCA 2007 case summary — Zoe

The Tribunal's decision 3 The Tribunal found that the appellant's evidence concerning his employment, financial situation and previous overseas travel was vaguely and hesitantly presented, and involved the highlighting of the appellant's alleged political activities in order to bolster his refugee status. The Tribunal found in particular that his evidence on political matters was expressed in merely general terms and related mostly to the framework of contemporary West Bengal politics. The Tribunal declined to give weight to a certain document submitted by the appellant purportedly from the TMC, and upon which the appellant placed reliance, as it had concerns regarding its provenance. Although the Tribunal was prepared to accept the appellant's assertions regarding his executive positions specifically in the TMC Youth Congress, it was not satisfied that those positions, which were not verified by any documentation, denoted or reflected in reality any political profile or influence on his part. The Tribunal found instead that the appellant's interest and role in West Bengal politics was of at least a low-key nature. 4 The Tribunal gave consideration in the foregoing context to specific events claimed by the appellant in support of his application for refugee status. With respect to the disruptions occasioned to the 2001 elections in India, the Tribunal gave the benefit of the doubt to the appellant's narrative, and hence acknowledged those claims, but found that the alleged attack by the CPIM upon the appellant was inferentially intended to halt the protest and not to target the appellant. 5 The Tribunal gave the appellant the further benefit of the doubt that in the context broadly as testified, he had gone to live in his sister's house, and that in his absence, his family was abused and threats were made against him. However, it found the primary reason for that incident not being reported by the appellant to relevant authorities was because the appellant did not consider it to be serious, and further that the mistrust by the appellant's family concerning the police had been only a secondary consideration. Furthermore the Tribunal observed that there were no such further or similar incidents in 2001 and 2002 in which he claimed involvement. Consequently the incident whereof he complained did not indicate an intention, in the Tribunal's view, to inflict serious harm on him at that time or in the future. The Tribunal did not accept moreover the appellant's claim to abduction in February 2003. 6 The Tribunal addressed the country information regarding politically-motivated violence in West Bengal and the appellant's suggestion that CPIM hoodlums acted with the tacit support of the government in power. However due to a lack of country information and the Tribunal not accepting that CPIM hoodlums generally acted with the support of the CPIM, and due further to what amounted in reality to the appellant's low political profile, the Tribunal concluded that any harm and adverse attention relevantly to the appellant would be remote if he was to return to India. 7 The Tribunal further considered that there existed adequate state protection in India for the appellant in relation to his personal circumstances identified, especially in view of his family's social and economic standing in the community where he lived. The Tribunal did not accept as credible that false charges were laid against the appellant. The Tribunal observed the reality of the appellant's unhurried departure from India and did not accept the appellant had been subject to any persecution in India preceding that departure. 8 The Tribunal did not consider therefore that the appellant had any well-founded fear of persecution in India in the reasonably foreseeable future, and that his low level of political commitment and activity, such as it was, did not mean that it was likely that he would attract adverse attention in the future. The Tribunal also considered that relocation of the appellant elsewhere in India was not unreasonable. The Tribunal affirmed therefore the decision of the Minister's delegate not to grant a protection visa.

[4]

Decision of Federal Magistrate 9 Before the Federal Magistrate, the appellant's principal ground for review of the Tribunal's decision, as set out in his application, asserted a denial of procedural fairness, in that the Tribunal did not put its concerns about the authenticity of a certain letter bearing date 14 February 2003 to the appellant for explanation or otherwise. The appellant provided further grounds and arguments in the written submissions which her Honour also addressed. 10 The Federal Magistrate considered the ambit of s 422B of the Migration Act 1958 (Cth) ("the Act") and found, in the light of authority, that she was bound to follow the decision of the Federal Court in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 302, where Branson J considered the possible operation of principles of procedural fairness beyond the scope of the obligations imposed by s 424A of the Act and concluded there was no scope for any wider obligation to provide particulars of information in relation to the Tribunal's review process. Barnes FM found that the appellant's grounds of complaint in relation to the breach of common law rules of procedural fairness could not succeed since the effect of s 422B was that there was no obligation on the part of the Tribunal to put its concerns about the document to the appellant for explanation. 11 The Federal Magistrate considered moreover that the issue arising in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1 (Lee, Hill and Carr JJ) was distinguishable, as the Tribunal did not make here a positive finding of fraud but rather accorded the letter no weight. 12 In relation to grounds of review raised by the appellant below regarding the obligation of the Minister under s 424A(1) of the Act, the Federal Magistrate found no error to have been established. The country information and the Tribunal's comments on the implausibility of the letter transmitted by fax on 29 November 2003 from a Mr Baksi were excepted from any operation adversely to the Minister of s 424A(3) of the Act. Furthermore her Honour considered that the letter did not constitute a matter upon which the Tribunal relied upon as constituting the inconsistencies between the information provided to the delegate and that to the Tribunal, and further took the view moreover that the Tribunal's thought processes were not information falling within the scope of operation of s 424A(1) of the Act in any event. 13 The Federal Magistrate found in addition that there was no evidence to support the appellant's other grounds for review sought to be advanced in his submissions to the Court, and that the purported grounds for review sought by the appellant were in the nature of merits review of the Tribunal's decision. In the result, her Honour found no reviewable error was established and dismissed the application for review.

[11]

(v) avoid harm by avoiding politics 27 Contrary to the assertion advanced by the appellant in ground 9 of the notice of appeal, the Tribunal did not find that the appellant could evade harm by not being politically active. Rather, as already outlined, the Tribunal found that he had not previously been subjected to persecution and did not have a profile likely to attract persecution in the future. Moreover the Tribunal established that the violence from the CPIM was sporadic, not state sponsored, and further that there was in place effective state protection. 28 After making the foregoing findings, which were sufficient in scope to dispose of the appellant's claims, the Tribunal made the alternative findings that the appellant would be able to express his political views freely on his return to India, though he might need to exercise some caution in so doing during elections in CPIM strongholds. The Tribunal recognised that such restraints 'are limited in duration and scope, and do not amount to any oppression of his ability to express his political opinions which would give rise to persecution'. That alternative observation of the Tribunal was made in circumstances where the member had found that the inter-party violence in West Bengal was not systematic, and that the appellant was unlikely to be specifically targeted. Accordingly the Tribunal did not outline how the appellant could avoid persecution within the meaning of the Act, but rather whether the reasonable steps he could take to minimise the risk of being the victim of sporadic and election related violence could per se involve or constitute persecution. The Tribunal duly found to the negative of that proposition. 29 I would add that the appellant also claimed that the Tribunal 'ignored its undertaking' to give him the opportunity generally to make written submissions on any controversial issue as to inconsistencies or otherwise in his testimony. That claim was said by the Minister to be without foundation, and I think that is correct, upon the basis that it would appear that the Tribunal did not rely upon any inconsistencies per se, nor was there any suggestion in the Tribunal's reasons for decision or records relating to its decision to suggest that any such undertaking was given. Moreover the Tribunal did accept further evidence from the appellant's migration agent submitted after the hearing, being the letter from the Dum Dum Trinamool Yuba Congress.

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Judgment (13 paragraphs)

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Cases Cited (4)