SZEXY v Minister for Immigration & Multicultural & Indigenous Affairs

No Persecution 8 The Tribunal found that, on the basis of independent country information, the police in India are corrupt. The Tribunal accepted the appellant's claim that he had been mistreated by police, who had sought bribes from him. 9 However, despite the pretext for the actions of police being that the appellant was involved with terrorists or for religious reasons the Tribunal found that the appellant's religion and his political opinion were not individually or cumulatively the essential or significant reason for the action taken against the appellant by the police. The Tribunal made an additional finding which went further, namely: '[The actions of police] were not taken because of the Applicant's religion, or because his family supported the Congress Party or that he was considered a Sikh terrorist sympathizer. Rather, it was related to the police seeking bribes.' 10 It was on the basis of these findings that the Tribunal concluded that 's 91R(1)(a) of the Act is not satisfied and there is no persecution'.

No Subjective Fear of Persecution 11 The Tribunal also found that the appellant had no subjective fear of persecution. It did so having regard to the evidence of the appellant's past conduct and his oral evidence. In particular, the Tribunal found that the appellant's 'reason for leaving India was poverty and not due to his fear of persecution'.

No Real Chance of Persecution Upon Return to India 12 If, upon the appellant's return to India, the police were to re-open the old cases against him, as the appellant claimed would occur, the Tribunal found that, on the basis of independent country information, the appellant would be able to avail himself of the Court system for a resolution of these matters. Accordingly, the Tribunal found that the appellant does not face a real chance of persecution should he return to India.

Relocation 13 The Tribunal found that, even if it was wrong as to the Convention basis of the actions by the police, then on the evidence before it, it is reasonable that the appellant could relocate within India to avoid possible harm. The Tribunal made this finding having regard to its subsidiary findings: that there is no restriction of movement between the states of India; that 'the applicant's religion and political opinion were not valid reasons for his not being able to relocate'; that the appellant's personal attributes, including his ability to learn and utilise languages meant that he could successfully relocate to another part of India; that the appellant does not have a political profile which would attract the interest of the authorities outside his home state; and that the appellant will enjoy the meaningful protection of the Indian police and other security institutions. 14 These findings culminated in the Tribunal's conclusion that 'relocation is both a reasonable and practical option for the applicant'.

Proceedings in the Court below 15 On 16 December 2004 the appellant filed an amended application in the court below. It was a lengthy document which advanced 17 grounds of review. These grounds raised ten matters for consideration by the Federal Magistrate. 16 First, the Federal Magistrate held that a number of the grounds were requests for impermissible merits review: See [14] - [16], [25] - [26]. 17 Second, the combination of some grounds raised an allegation of bias, which his Honour dealt with at [17] - [20] and rejected at [21] by concluding: 'In the absence of a distinct allegation of bias and the complete absence of any evidence, the respective grounds making claims of bias must fail.' 18 Third was the question of whether the Tribunal erred in its consideration of the real chance test. The Federal Magistrate considered this issue at [22] - [23] and accepted the first respondent's submission that the Tribunal had identified the test and applied it correctly: [24]. 19 Fourth, the grounds disclosed a complaint that the Tribunal did not provide country information to the appellant. The Federal Magistrate held that the information fell within the purview of s 424A(3)(a) and that the Tribunal was not required to provide it to the appellant for comment: [27]. 20 Fifth, the appellant claimed that the Tribunal failed to give him a proper opportunity to present further evidence. The Federal Magistrate rejected this complaint because the appellant did not in fact provide any further material to the Tribunal, nor did he provide any evidence to the court below of what he would have submitted to the Tribunal: [28]. 21 Sixth, the appellant alleged that the Tribunal did not follow the procedures of natural justice and procedural fairness, which the Federal Magistrate rejected at [29] for the reasons there given. 22 Seventh, the appellant complained that the Tribunal ignored an integer of his claim. The appellant did not identify the integers he claimed that the Tribunal had overlooked and the Tribunal appeared to have carefully considered his claims. The Federal Magistrate did not 'consider it appropriate to draw the inference that the Tribunal failed to deal with the claim raised on the material before it': [30] - [33]. 23 Eighth was the issue of relocation. The Federal Magistrate accepted the first respondent's submission that the Tribunal made its finding on relocation in accordance with the test in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 and that the finding was open to the Tribunal to make: [34] - [36]. 24 Ninth, the appellant claimed that the Tribunal had failed to take into account certain considerations which were alleged to be relevant considerations. The Federal Magistrate rejected this ground on the basis that the Tribunal was not required to take into account the considerations, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24: [37] 25 Tenth, the appellant claimed that the Tribunal should have independently investigated his claim to fear persecution. The Federal Magistrate held that the Tribunal is under no positive duty to investigate the applicant's claims: [38].

Appeal to this Court 26 The notice of appeal raises only one ground, namely, that 'The Federal Magistrate erred by not finding that the Tribunal made jurisdictional error as it misunderstood the meaning of persecution'. 27 There are a number of excerpts from the Tribunal's decision given as particulars to the single ground of appeal, in addition to several statements, which make apparent that the ground of review sought to be agitated is ground 11 as raised before the court below. 28 Ground 11 of the appellant's amended application in the court below stated 'The Tribunal wrongly assumed that the applicant would not suffer convention based persecution'. 29 As his Honour made plain in the court below (at [16]): 'A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under prevailing law not whether the actual decision was the best decision which could be made in the circumstances. A merits review provides complete rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application, unfettered by earlier decision or the reasons of the decision maker for the earlier decision. A merits review determines the correct preferable decision in all the circumstances. As has been explained on numerous occasions and in particular by Allsop J in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs and NARE v Minister for Immigration & Multicultural & Indigenous Affairs and also by the Full Federal Court in NAAH v Minister for Immigration & Multicultural Affairs the Court cannot engage in a merits review and it is not part of its task to do so.' 30 The first respondent submitted that the decision of his Honour in this regard was entirely correct. The appellant sought in the court below to challenge the Tribunal's finding that it was not satisfied that the appellant would face persecution. In this Court, whilst the notice of appeal purports to challenge the application of the meaning of/or test of persecution, it is, in essence, a merits challenge once again. This is patent when having regard to the factual matters stated as particulars, for example: 'The fact that Police were seeking bribes by subjecting the applicant to harm is not incompatible with the applicant being imputed with political opinion or that it was done because he was a Sikh who could easily be imputed with political opinion for the purpose of getting a bribe.' 31 The first respondent submitted that to the extent the appeal to this Court seeks a merits review, that is not part of the function of the Court in dealing with an application for relief under s 39B of the Judiciary Act 1903 (Cth):See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Peko-Wallsend Ltdat 40 - 42. 32 In addition, the first respondent submitted that from a reading of the Tribunal's decision and the decision of the learned Federal Magistrate, there is no jurisdictional error manifest. 33 There is one further matter not raised by the notice of appeal which the first respondent brought to the attention of the Court. In the process of making its relocation finding, the Tribunal had regard to a number of different sources including independent country information, the appellant's evidence at hearing and discussions with the Tribunal regarding the feasibility of relocation, together with various factual matters the appellant had included in his protection visa application, such as the appellant's ability to read and speak a number of languages. 34 The first respondent acknowledged that, consequent upon the decision in SZEEU vMinister for Immigration & Multicultural & Indigenous Affairs [2006]FCAFC 2,the Tribunal may have taken into account some matters in reaching a conclusion about the viability of relocation which ought to have been put to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'). However, the first respondent submitted that there are separate and independent bases upon which the Tribunal's decision is based, namely, the Tribunal's findings that the appellant did not experience relevant persecution, did not have a subjective fear of persecution and had no real chance of persecution should he return to India. Accordingly, the first respondent submitted that this would be sufficient to justify the withholding of relief should the Court find that the Tribunal breached s 424A of the Act: See SZEEU at [233] per Allsop J. 35 I agree with these submissions.

Conclusion 36 There being no jurisdictional error manifest, the decision is a privative clause decision for the purpose of s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 37 The appeal must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Applicant: The appellant appeared in person