SZJYR v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-28|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 29 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 28 November 2006 and handed down on 12 December 2006. 2 The appellants are citizens of India, who arrived in Australia on 22 April 2006. On 2 June 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 31 August 2006. On 8 September 2006 the appellants applied to the Tribunal for a review of that decision. 3 The appellants, who are from Pune, are a husband and wife, and their 16 year old son. Only the appellant husband made claims under the Convention with the appellant wife and son relying on membership of his family unit. As only the appellant husband made claims to fear persecution he will be referred to as the appellant.

THE TRIBUNAL'S DECISION 4 In his application for a protection visa, the appellant claimed to have well-founded fear of persecution based on his actual or imputed political opinion, religion and particular social group. He claimed that he was involved with the Hindu Shiv Sena Party ('SS') and that he undertook related community and social work, primarily responding to bomb threats and helping the poor. 5 He claimed that he became well known and members of the Muslim League became jealous, and he was once beaten up with iron rods by members of the Muslim League and was threatened that he would be killed if he continued to work for SS. Police then started harassing members of the Muslim League, resulting in more threats to the appellant and his family. He claimed that later the police demanded 25,000 rupees when he attempted to lodge a complaint, and he realised that they had been bribed by the Muslim League. As a result, he ended his involvement with the party and later established a tile importing business. He claimed that one day he received an extortion call from the Muslim League, and when he refused to pay them his wife was almost killed. 6 The Tribunal did not accept that the appellant had a major role in SS due to his lack of knowledge about local politics and his involvement in SS. Rather, the Tribunal found he had a minor role which brought him no prominence, and no resulting persecution. 7 The Tribunal also found that: Even if - which I do not accept - one or more individuals had a political grievance against the applicant, I find that he could reasonably move away from Pune. 8 The Tribunal did not accept any of the claims flowing from the general claims that Muslims were persecuting the appellant, nor did it accept the claim that the appellant lost business as a result of leaving the party. The Tribunal concluded that the account given of the attack on the appellant's wife was not convincing - it emerged at the hearing that neither the appellant nor his wife knew who was responsible for the attack or why. 9 Further, the Tribunal noted that a medical report showing the appellant was treated for injuries in 2003 was not corroborating evidence of the cause of the injuries and, even if they were a result of a political attack, such an attack was not repeated and there was no indication that another attack was at all likely. 10 The Tribunal concluded that it was not satisfied that the appellant had a real chance of suffering harm in the reasonably foreseeable future in India.

THE FEDERAL MAGISTRATE'S DECISION 11 On 2 January 2007 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant pressed two grounds of review, namely that the Tribunal: · erred in taking an 'unduly narrow view of political opinion' and 'misdirected its enquiries' by not imputing as political opinion the appellant's social and charitable activities, regardless of whether he was a member of SS; and · improperly determined that the appellant could relocate and failed to consider other aspects of the claim. 12 His Honour found at [20] that: There was nothing before the Tribunal to suggest that the applicant was targeted by the Muslim community simply, and solely, and/or separately, on the basis of his having undertaken the social and charitable work such that that work alone could be said to impute some political opinion to the applicant that attracted the attention, and adverse reaction, from the Muslim League. 13 While his Honour recognised that there was authority that a Tribunal 'should not take an unduly narrow view of the concept of "political opinion"', the Federal Magistrate did not find that the Tribunal took such a view in the present matter, because, at [27]: … the Tribunal understood the applicant's claims and the relevant circumstances from which they were said to arise. It clearly envisaged that his activities, and their scale and importance, were relevant to its consideration but found that they were not of such level or character as would result in the retaliatory action to which the applicants claimed they were subjected by elements of the Muslim community. 14 His Honour shared the view of the appellant that the relocation finding was made without consideration of the factors outlined in Randhawa v Minister for Immigration (1994) 124 ALR 265 (see also SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634). However, the Federal Magistrate found this did not entitle the appellant to discretionary relief because the Tribunal separately found that the appellant did not have a well-founded fear of persecution, and it was not necessary for the Tribunal to consider relocation. It was further noted at [36] that: … the existence of an independent and unimpeached ground for the decision precludes relief being given in respect of any jurisdictional error that did occur… 15 The Federal Magistrate thus concluded at [39] as follows: In all therefore, the applicants' grounds, as advanced with the assistance of legal Counsel do reveal error in one respect. But I decline to grant the relief sought in light of, and balanced with, a clear, independent and unimpeached finding that the applicants do not have a well-founded fear of persecution for a Refugees Convention reason. The application is therefore dismissed.

GROUNDS OF APPEAL 16 In the notice of appeal filed on 15 November 2007 in this Court, the appellant raised two grounds of appeal: that his Honour erred in rejecting the appellant's argument that the Tribunal had erred in imposing an unduly narrow view of political opinion, and that the Federal Magistrate erred in refusing to grant relief despite concluding that the Tribunal fell into error in its relocation finding. 17 At the hearing of the appeal before me the appellant took me to a number of passages of the evidence before the Tribunal, and sought to persuade me that the material and evidence supported the factual contentions of the appellant. In addition, the appellant contended that the Tribunal should have adjourned the hearing due to the fact the husband appellant was suffering from depression at the time.

CONSIDERATION 18 I commence by saying something about the submissions made by the appellant this day before me. I have carefully considered the position of the appellant, but my role is limited to one of review. 19 I was taken on behalf of the appellants to the evidence given before the Tribunal, demonstrating much of the personal circumstances relied upon by the appellant for the purpose of that hearing. The Tribunal did consider the evidence and reached various conclusions on that basis. It is not my role to reconsider the evidence, review the credibility findings of the Tribunal, and then reach my own view. My role is to review the decision of the Federal Magistrate. I cannot substitute my own view on the merits for that of the Tribunal. 20 In relation to the adjournment ground, the simple argument against that ground is that an adjournment was not sought at the actual hearing of the Tribunal. Time was requested for the provision of further material, which was granted and which was availed of by the appellant. Certainly no adjournment before the Tribunal was sought because of the depression of the appellant husband; before the hearing a postponement was requested, but this was on the basis of the appellant wanting time to obtain further evidence. Further, in the circumstances, I do not consider that the Tribunal, on its own initiative, needed to postpone the hearing. 21 It is important to recall that the appellant's claimed active membership of the SS was at the heart of his claims and was inextricable from his social/charitable profile. This was the basis upon which the Tribunal and Federal Magistrate proceeded, and in my view the Federal Magistrate's reasoning in relation to the matters covered by the first ground of appeal is comprehensive and compelling. 22 In any event, there were additional findings made by the Tribunal which were fatal to the appellant's claims. Findings were made that: (i) there was no evidence the claimed attack on the appellant's wife was politically motivated; and (ii) there was no evidence that incidents in the nature of the beating which the appellant claimed he had suffered would occur in the future. These findings removed any basis on which it might be concluded that there was a real chance the appellant would suffer 'serious harm' within the meaning of s 91R of the Act if he returned to India. It follows that the Tribunal made the only decision open to it on the facts as found: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384; V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 at [75]-[79]. 23 As to the second ground of appeal, his Honour was correct to conclude that there was an alternative basis for the Tribunal's decision. In fact, there was an additional basis as indicated above. 24 The existence of an independent and unimpeached ground for the decision may preclude relief being given in respect of any jurisdictional error which did occur: see for example SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 at [231]-[233]. 25 The Federal Magistrate properly refused relief for the reasons he gave as referred to above. 26 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct. 27 The appeal should be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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