SZHPD v Minister for Immigration and Citizenship

Federal Court of Australia|2007-02-15|Before: Middleton J

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time to file and serve a notice of appeal against the orders and judgment of Federal Magistrate Scarlett handed down on 18 August 2006. On 18 August 2006 Scarlett FM dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 27 October 2005. 2 Relevantly, the applicant was required to file a notice of appeal within 21 days from the date that judgment the subject of the appeal was pronounced: O 52 r 15(1)(a) of the Federal Court Rules. Accordingly, the applicant was required to file a notice of appeal by 8 September 2006, but instead filed an application for an extension of time six days later on 14 September 2006. The applicant therefore seeks an order under O 52 r 15(2) of the Federal Court Rules granting leave to file and serve a notice of appeal out of time.

Explanation for the delay 3 In an affidavit affirmed on 13 September 2006, the applicant states that he received the judgment on 4 September 2006 as it was sent to him by ordinary mail and that he was not aware that he had 21 days to file the notice of appeal. 4 The Federal Magistrate delivered an ex tempore judgment on 18 August 2006. The applicant appeared in person assisted by an interpreter when judgment was delivered. Whilst I do not consider the explanation advanced by the applicant to account for his delay in filing a notice of appeal adequate, the delay itself is not significant (six days). Accordingly, I will proceed on the basis that if, on consideration of the merits of the appeal, the appeal is bound to fail, I will not allow the application. Alternatively, if there is merit in the proposed grounds of appeal, I will grant the application for an extension of time and consider hearing the appeal instanter. It is therefore necessary, before moving to the merits of the applicant's purported appeal, to set out the background to the matter.

Factual background and Applicant's claims 5 The applicant is a citizen of India who arrived in Australia on 23 December 2004 and subsequently lodged an application for a protection visa. The applicant claims he has been discriminated against because of his membership of the Harijan or Untouchable caste and, as a result, claims to fear harm from upper class Hindus. The applicant claims he is one of the few people who are educated, with most members of his caste being illiterate, however his education and employment opportunities have been denied. The applicant claims he joined Panchayat, a local village body, and gave lectures, and as a result has been beaten and threatened by those opposed to the Mandal Commission, a group proposing the reservation of seats in education and government jobs for lower castes. 6 The applicant further asserts his involvement in certain political activities to oppose upper class people in the area. In particular, he claims to have had involvement with, and influence from, the Bahujan Samaj Party and to have organised a rally in 2004 where people were beaten by police. The applicant claims he was arrested but then released being warned not to participate in politics. When preparing for elections in 2005 the applicant claims his car was stopped and he was beaten and threatened. The applicant claims he received a death threat letter and he subsequently moved his family to a relative's village and he left India. The applicant claims that local authorities are controlled by upper class Hindus and they cannot protect him. 7 A delegate of the first respondent refused the application for protection visa and the applicant subsequently applied for a review by the Tribunal of that decision.

THE DECISION OF THE TRIBUNAL 8 The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal had regard to independent evidence which indicated the caste system was still operating in India and that a degree of discrimination and occasional oppression is experienced by scheduled caste members. However the independent evidence also demonstrated that the central government has taken active measures to redress discrimination although caste oppression regularly occurs and there is evidence of inter-caste violence. 9 The Tribunal accepted that the applicant may have suffered discrimination as a scheduled caste member and that he was a supporter of the rights of scheduled caste members. The Tribunal also accepted that the applicant had been targeted by local higher caste members. However, despite such discrimination, the Tribunal found that, as the applicant had high school education, it would be reasonable for him to relocate to an urban area to avoid caste conservatism of rural areas and avail himself to affirmative action programs and if necessary, governmental protection.

The Federal Magistrate's Decision 10 On 15 November 2005 the applicant filed an application for judicial review of the decision of the Tribunal. Before the Federal Magistrate in an amended application the applicant claimed the following:

RRT made incorrect statement that my claims are unfounded because I have been able to obtain high school education. There have been a recent case in Haryana where several houses of untouchables have been burnt, Neither the Government gave any protection nor any body else.
RRT has suggested that I can settle elsewhere in India, but it is a fact that caste system is widely prevalent in all over India. 11 At hearing the applicant further asserted the Tribunal acted in breach of s 424A of the Migration Act 1958 (Cth) ('the Act') as independent country information was not provided to the applicant for comment. 12 The Federal Magistrate summarised the applicant's claims (at [3]) and the Tribunal's findings in respect of those claims (at [7]-[9]), and then dealt with each of the grounds in the applicant's amended application. 13 His Honour found that the Tribunal did not fall into jurisdictional error: at [11]-[29], and could not find any apparent jurisdictional error in the Tribunal's decision. 14 Considering evidence given by the applicant to the Tribunal, which indicated that the applicant's inability to relocate was linked to economic difficulties, rather than as a result of his claims that he would suffer persecution, the Federal Magistrate agreed with the Tribunal's finding that relocation to avoid persecution was reasonable. The Federal Magistrate asserted that the Tribunal considered the caste system in rural and urban areas and accepted that the applicant had suffered discrimination and harassment in his local area. They did not however accept that he could not relocate. No jurisdictional error was found to be apparent on the Tribunal decision as consideration was given as to whether there was a well-founded fear of persecution in India as a whole, not just in the local area of the applicant, and whether relocation was appropriate. 15 The Federal Magistrate also found that the Tribunal did not breach s 424A of the Act as independent country information is excluded from the operation of s 424A: s 424A(3)(a).

Grounds of appeal 16 The draft notice of appeal filed on 14 September 2006 contains five purported grounds of appeal:

The Tribunal and the Federal Magistrates Court erred in rejecting the case of the applicant on the basis of the possibility of relocation;
The Tribunal failed to correctly apply s 424A of the Act;
The Tribunal failed to accord natural justice;
The Tribunal made findings that were biased; and
The Tribunal denied the applicant procedural fairness. 17 The Federal Magistrate carefully considered the Tribunal's decision. His Honour not only considered all the grounds of appeal raised by the applicant, but also considered whether the decision contained any jurisdictional error. He concluded that the Tribunal had not. The purported grounds of appeal I now must consider are the same grounds of appeal agitated before the Federal Magistrate. In my opinion, the approach of the Federal Magistrate and his Honour's conclusions were clearly correct. 18 In relation to the first ground, I agree with his Honour that there was no error of law in the Tribunal's finding that the applicant could relocate in India as it found that the persecution claimed to be suffered by the applicant was localised in rural areas. The Tribunal correctly applied the principles identified by Branson J in SYLB v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 87 ALD 498, and assessed the personal considerations of the applicant to find that he could reasonably be expected to relocate within India. Therefore, no error arises in that regard. 19 The second purported ground of appeal alleges that s 424A of the Act was not applied correctly. I agree with the Federal Magistrate's finding that there was no breach by the Tribunal of s 424A. As his Honour found at [25], the information relied upon was independent country information, which falls within the exceptions in s 424A(3)(a) because it is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Furthermore, as his Honour noted, the Tribunal did put matters relating to the independent country information to the applicant at the hearing. 20 The three further grounds were not raised before the Federal Magistrate but can be considered on their merits. The third and fifth purported grounds in substance allege the same error and so I will consider the allegations together. As I have found above, the Tribunal put the independent country information to the applicant at the hearing. Even though it was not required to put such information to the applicant according to the exception in s 424A(3)(a), the Tribunal clearly put the applicant on notice that it would be considering the independent country information and in these circumstances there can be no breach of procedural fairness or natural justice. 21 Further, I do not need to consider any common law rules relating to natural justice as s 422B of the Act was in force at the time the applicant made his application to the Tribunal on or about 10 June 2005. 22 The fourth ground asserts that the Tribunal's findings were biased. There is no basis upon which I can conclude that the allegation of bias is 'distinctly made and clearly proved': Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69] per Gleeson CJ and Gummow J. There is simply no evidence to support such a contention.

Conclusion 23 As no arguable basis on which an appeal might succeed has been raised, the present application should be dismissed with costs. I will allow the first respondent to be correctly names at as the Minister for Immigration and Citizenship. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Counsel for the Applicant: The Applicant appeared in person

Migration Act 1958(Cth)ss 422B, 424A

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