SZKBF v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate given on 16 May 2007. The Federal Magistrate refused an application for an order to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 7 December 2006 and provided to the appellant on 4 January 2007. The Tribunal affirmed a decision of a delegate of the first respondent of 25 September 2006 refusing to grant to the appellant a protection visa for which he had applied on 4 September 2006 under the Migration Act 1958 (Cth) (the Act). That application was made about six weeks after the appellant had arrived in Australia for the second time. The appellant claimed to have a well-founded fear of persecution and so to be eligible for a protection visa because of his political opinions held in his home country of India. The Tribunal accepted that he is a Tamil Hindu born in 1975 and who, after his college education, was self-employed between about 1998 and 2000 and then following the 2001 election in his home state of Tamil Nadu did various odd jobs until about 2004. 2 The appellant's claim was that he was a promising businessman and a political activist of some prominence in Tamil Nadu, until he left India in January 2004. The appellant's claim was that he became the general secretary of the MNK party whilst at college and was an active supporter and "local leader" of that party in his home town. In the 2001 election in Tamil Nadu he supported actively the local MNK candidate. He claimed that the opposition party, the PNK party, became disturbed by his activities and in 2001 its extremist supporters ransacked his business and threatened him. Specifically, he said he was threatened with death or serious injury if he did not stop his political activities. He reported those threats to the police but they could not or would not protect him. 3 Over the succeeding three or so years he moved to Chennai and then to Kerala to avoid the realisation of those threats and to various other places where he lived for a short time. Because of the close relationship between the local PNK candidate and the police he said that the police refused to protect him and that he feared being tortured or killed by politically motivated extremists or by the local police "controlled" by the PNK, so that he fled India and went to Thailand in January 2004. The appellant then remained in Thailand, apart from short periods in Laos and Malaysia, until July 2005 when he returned to India for about two months but to its northern parts and then he returned to Thailand. In April 2006 he came to Australia and made an application for a protection visa on 8 May 2006. He withdrew that application on 5 June 2006 because, as he said, he thought everything had changed for the better. 4 He returned to Thailand but only for a few weeks, where he claimed to have been told by his parents that political extremists and the police were still looking for him. Indeed, he claimed that his brief trips to Laos and Malaysia were also prompted by fear that political activists from India had come to Thailand and he wished to avoid being accessible to them. His claim before the Tribunal was that, as a result of information he continued to receive, he still feared violence if not death from his political opponents if he were to return to India and that he had an ongoing well-founded fear of persecution, by reason of his political opinions, if he were to return there. 5 The reason his protection visa application failed before the tribunal was simply because the tribunal did not believe his claims about his political activities. It accepted that there is sometimes violence involving members of rival or opposing political parties in India, especially around and in relation to election periods. It also accepted that the police and other authorities in India sometimes do not provide protection for those threatened with harm arising out of such violence. They had to decide whether the appellant was one of those persons who was vulnerable to or might be vulnerable to such violence. 6 As I have said, it did not accept that the appellant fell into that category of persons because it considered that he gave untruthful evidence about his claims. It specifically did not accept that he was a member or secretary of the MNK political party or that he was active in the 2001 election or that he was targeted by or suffered harm from members or supporters of the PNK party. It gave reasons for that conclusion. In essence, those reasons were that his claims were not consistent, that he returned to India in July 2005, that it was implausible, on the whole of the evidence, given his claims as to what he had done on behalf of the MNK party, that he had had such a profile as to be searched for in either Thailand or India so long after 2001 and that his claims were inconsistent with him having stayed in India if he had such a fear between 2001 and 2004. It also took into account that the appellant had withdrawn his first application for a protection visa in Australia in circumstances where he knew he had no right to remain in Thailand and in the light of his claimed fear. It did not regard his explanation for having returned to Thailand in July 2006 as reasonable or plausible. 7 As the Tribunal did no accept that the applicant had engaged in the political activities which he reported, it concluded that he did not have a well-founded fear of persecution for reasons of his political opinion if he were to return to India. The application before the Federal Magistrate was ultimately based upon five grounds which it was asserted involved jurisdictional error on the part of the Tribunal. I do not need to refer to the Federal Magistrate's reasons in detail as the matters now raised by the appellant, in his notice of appeal and in his written outline of submissions and his oral submissions, overlap only to a small degree. It is more convenient to address each of the matters now raised by the appellant to determine whether they demonstrate jurisdictional error on the part of the Tribunal. 8 The notice of appeal is general and assertive. It complains, in part, of unfairness, injustice and some irrelevancy in the processes of the Tribunal. Such complaints do not identify particular features of the Tribunal's processes, which might enable jurisdictional error to be established. I think that to the extent that they may do so they are more refined in the appellant's written submission, to which I shall turn shortly. There are two particular matters in the notice of appeal which I should mention. The first is an assertion that the Federal Magistrate erred in not applying the relocation "principles" as explained in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That complaint is misconceived. Neither the Tribunal nor the Federal Magistrate were required to consider those principles in the light of the findings of fact of the Tribunal. The Tribunal simply found that nowhere in India was the appellant at risk of being persecuted for his political beliefs if he were to return there. It was not, therefore, necessary to consider whether, if he was at risk of being persecuted in a particular part of India, it was reasonable for him to relocate to another part of India where he could live safely. 9 The second matter arising from the notice of appeal is the assertion that there was a lack of procedural fairness in his case based upon the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. That case was decided upon its particular facts. By way of contrast, here there was no attempt to show that the applicant was mislead into believing that the Tribunal had before it and had considered documents in a way which coloured the way he had presented his case to the Tribunal. In any event, as counsel for the first respondent has pointed out, there is nothing to suggest that the Tribunal did not have regard to the material referred to in the decision of the delegate of the first respondent nor conversely that it did have regard to that material. 10 The written submission, so far as I can discern, identifies six further matters which are said to constitute jurisdictional error. Firstly, it is complained that the Tribunal failed to comply with s 424A of the Act by not giving the appellant notice of certain information upon which it proposed to rely, that is, independent evidence as to the prevalence of certain conduct in relation to political persecution in India. The first answer is that such information did not attract the application of s 424A(1) of the Act because it is not specifically information about the appellant or another person but is more general information. Secondly, that information, so far as it may have touched upon the way in which political violence or politically motivated violence in India may arise and the reaction of the authorities to it, was the subject of a finding by the Tribunal which was favourable to the appellant's claim. I have referred to it above. Thirdly, the information was not relevant to the way in which the Tribunal finally determined the claim because its decision was based upon its assessment of the appellant's evidence viewed as a whole and its inherent implausibility. 11 The appellant, secondly, complained in his written submissions that the Tribunal failed properly to apply a test of persecution as specified in section 91R of the Act. No such error is shown on the part of the Tribunal. It is implicit in the Tribunal's reasons that, had it believed the appellant as to what he claimed he had experienced in the past and what he feared in the future, and had it been satisfied that there was a real chance of such fears being realised if he were to return to India, it would have been satisfied that the appellant had a well-founded fear of persecution for a convention reason. It simply did not believe him. 12 The third matter concerns the use of information about India by the Tribunal. It is contended in the appellant's submissions that the Tribunal did not consider all of the available independent information about India and did not "have a fresh look" at the appellant's claims. There is nothing to support that contention. If it is intended to convey a complaint that a reasonable and informed by-stander might think that the Tribunal did not approach its task with an open mind, there is nothing to support it. If it is intended to assert that the Tribunal somehow effectively selected only independent information adverse to the appellant's claim, there is nothing to support it. 13 It was next claimed that the Tribunal had acted illogically in not accepting the evidence of the appellant. It may be accepted that if the Tribunal made a decision which was so unreasonable that no reasonable decision-maker could have reached it, that may indicate that the Tribunal did not properly understand its task and so commit a jurisdictional error, but this case does not fall into that category. It is not the Court's role to decide whether the Court with the same information would have reached the same factual conclusions. Fact finding is for the Tribunal, but I am satisfied that the Tribunal's analysis of the facts and its reasons for rejecting the appellant as a witness of truth were not so unreasonable that no reasonable decision-maker could have reached them. In saying that, I am applying strictly the relevant test. I am not intending to indicate that the Tribunal's reasons were anywhere near that extreme position. 14 The appellant then complained in his written submission that the Tribunal should have found that he was a refugee. The submission refers to each of the elements of the definition of refugee in the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act, and asserts that his evidence satisfied each of those elements. It is correct that his evidence satisfies each of those elements but, in the significant respects to which I have referred, his evidence was not accepted. In my judgment, the appellant is simply endeavouring to re-argue the factual merits of the case. That is not a course open to the Court. 15 Finally, in the written submissions, the appellant refers to a number of sections of the Act relating to the exercise of the Tribunal's powers and functions, namely ss 91R(2), 414, 415 and 420. There is nothing to indicate that the Tribunal did not comply with those provisions in undertaking its review role. In his oral submissions today, the appellant raised one matter which he had raised before the Federal Magistrate. He said he was not happy with the way the hearing before the Tribunal was conducted. In response to my questions, he said that he would make out that proposition, for what it is worth, from the reasons of the Tribunal itself. 16 The proposition can only be worthwhile if it were to demonstrate, either that the appellant had not been given a hearing, or an opportunity to be heard as required by s 425 of the Act or if the conduct of the hearing by the Tribunal were to demonstrate to a reasonable, informed bystander that it may not have approached its task with an open mind. Neither of those things are made out. Nor indeed is the appellant's complaint about the nature of the hearing made out at all. His complaint is that the Tribunal did not enquire as to the nature of the threats he had received from political extremists of the PNK. In fact, the Tribunal recites in its reasons the appellant's claims as recorded in his protection visa application. It then records in some detail the course of the interview at the hearing on 5 December 2006. It appears from those reasons that the Tribunal asked the appellant at some length about why he had stayed in India until 2004, why he had moved to Laos and Malaysia for two brief periods whilst in Thailand, why he had returned to India in July 2005 and why he had returned to Thailand in July 2006, albeit briefly. 17 The Tribunal also records that it asked the appellant whether he had had any trouble in India, apart from the trouble he described as happening in 2001 around the time of the election. The appellant apparently told the Tribunal that he had had no other trouble, presumably referring to particular incidents rather than the threats to which he referred. The Tribunal, understandably, followed that enquiry with a request of the appellant that he explain what caused him to leave India in 2004. The subsequent part of the Tribunal's reasons records the appellant's response at some length, including questions by the Tribunal about the nature and extent of his political role in 2001. The Tribunal notes at the end of that particular exchange that the appellant agreed that, apart from telling the Tribunal about the election in 2001 and that he was the secretary of the MNK party in 2000 and 2001. He had not given any other evidence that he had any political profile in India. 18 In my judgment, none of the matters which the appellant has raised go any distance to demonstrating jurisdictional error on the part of the Tribunal, nor do they demonstrate error on the part of the Federal Magistrate. Accordingly, I consider that the appeal should be dismissed. The appellant must pay to the first respondent costs of the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.