SZKGX v Minister for Immigration and Citizenship

Federal Court of Australia|2007-11-06|Before: Stone J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Driver FM made on 26 July 2007; [2007] FMCA 1222. His Honour dismissed the appellants' application for judicial review of the Refugee Review Tribunal's decision to refuse the appellants' application for protection visas.

BACKGROUND 2 The appellants, husband and wife, are citizens of India who arrived in Australia on 1 June 2006. On 19 June 2006 they lodged their applications for protection visas with the Department. Their applications were refused by a delegate of the first respondent and, on 6 October 2006, the appellants applied to the Tribunal for review of that decision. 3 Although the appellants both applied for protection visas only the husband made claims under the Convention. His wife makes no independent claims and relies on membership of her husband's family unit. For that reason I shall refer to the husband as the appellant. 4 The appellant claimed he had a well-founded fear of persecution by the ruling state government, which is dominated by the Bharatiya Janata Party (BJP), because he is a member of the Congress Party. The appellant claimed that he joined the Congress Party in 2001 and that he did some work for the party in his capacity as a self employed photographer/video-cameraman. He says he was involved in Indian state and federal elections in 2002 and 2004, and that during local elections in 2005, while manning the polling booths, he noticed voting irregularities, including that the BJP was allowing unregistered voters to vote. The appellant claimed that he complained to the police and the electoral office but no action was taken. He also says that an article he wrote about local council irregularities, including inappropriate spending of public monies, was published in a local newspaper with his by-line and photograph. 5 The appellant claims that after the local elections he was harassed by members of the BJP, who called him at his photo studio to tell him he would get no more work. The appellant also claimed that in 2006 members of the BJP stopped him and said he had to "stop all this", asked him if he still worked for the Congress Party, and said that it was their last warning. As the appellant believed they were going to hit him he raised his arm defensively and received a blow to the wrist, before the assailants ran away. Passers-by told him what happened and his brother took him to hospital, where the incident was reported as an accident rather than assault. The appellant claimed that, fearing harm to his family or himself, he left India a few months later.

TRIBUNAL DECISION 6 The Tribunal found no evidence that the BJP was involved in harassment of the appellant, and that the alleged assault was the result of a chance encounter with a few local BJP members. The Tribunal accepted that the appellant was at odds with the BJP during the local elections, but found that no harm befell him at that point. The Tribunal also accepted the claims about the article he had written but found that the information contained in the article was public knowledge in the area. The Tribunal noted the lack of details given by the appellant in relation to alleged BJP harassment and threats, and concerning activities he was involved in other than writing the article. The Tribunal also noted that there was no evidence that the appellant would be unable to access state protection. 7 The Tribunal therefore found no evidence that the appellant had suffered serious harm amounting to persecution, or that there was a real chance of persecution in the reasonably foreseeable future.

APPEAL TO FEDERAL MAGISTRATES COURT 8 The application in the Federal Magistrates Court filed on 2 March 2007 sought to attack the Tribunal's decision. In an amended application filed on 4 May 2007, the appellant claimed that the Tribunal made a jurisdictional error as it failed to "review the adequacy and effectiveness of State protection", failed to properly consider relocation, failed to comply with s 424A of the Migration Act 1958 (Cth), and failed to apply the "what if I am wrong?" test. 9 His Honour held that the Tribunal did not need to consider the availability of state protection because it found the appellant had not suffered persecution and did not have a well-founded fear of future persecution. Further, although the Tribunal made a finding that there was no evidence the appellant would be unable to access state protection, that finding was unnecessary. Similarly it was not necessary for the Tribunal to consider the issue of internal relocation as the appellant was not at risk of persecution. His Honour also found that there was no need for the Tribunal to consider its position on the basis that its findings might be wrong, as the Tribunal was not in any doubt as to its findings. Finally, the asserted breach of s 424A was not particularised and could not succeed. 10 The Federal Magistrate noted that in oral submissions the appellant raised a new matter, claiming he had documents to support his claim of persecution. He said such documents were offered by him to the Tribunal, but were rejected by the Tribunal. The Federal Magistrate found that this assertion was unsupported, and noted the Tribunal had considered the newspaper article.

APPEAL TO THIS COURT 11 The appellants filed a Notice of Appeal in this Court on 13 August 2007. The sole ground of appeal is that: The FM failed to find that the tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error. (a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). 12 At the hearing of the appeal before me, the appellant was not able to make any submissions to support the allegation that the Tribunal had not acted in accordance with s 424A. On behalf of the first respondent, Mr Mitchell of counsel, put the following written submission: …the Tribunal's decision was based on an assessment of the Appellant husband's claims to have suffered past persecution. It accepted that some members of the BJP had held feelings of animosity towards the Appellant husband and that he had experienced problems during the local election of 2005. The Tribunal noted that the Appellant husband had only been able to detail the one incident, being the assault of January 2006. It also noted that the Appellant husband did not lay charges against the assailants. The Tribunal found that the assault was an isolated incident that did not amount to serious harm. It further found that there was nothing to indicate that the Appellant husband could not access effective state protection.

In essence the reason for the Tribunal's decision was its appraisal of the past harm suffered by the Appellant husband as not constituting serious harm and accordingly, the chance of serious harm in the future was remote. That appraisal was not information for the purpose of s 424A(1) and accordingly s 424A(1) did not apply to that appraisal. 13 In my view, Mr Mitchell's submission is correct. At the hearing, however, he drew to my attention a decision of the Full Court of this Court handed down on 27 July 2007 in SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110. The Full Court held that, where there are two or more applicants before the Refugee Review Tribunal, the reference to "applicant" in s 424A(3) of the Migration Act 1958 (Cth) is to be read as a reference to each applicant individually. In SZGSI, both husband and wife had individually given evidence before the Tribunal. The Full Court found that the Tribunal had breached s 424A by failing to give to the wife particulars of relevant information provided by her husband and that the exception in 424A(3)(b) did not apply in such circumstances. 14 I agree, with respect, with the Full Court's view however it does not apply to the present circumstances. In this case, at all times, the husband has spoken for his wife. She gave no independent evidence, and made no independent claims. Therefore, information given by the husband was also information given by the wife and as such s 424A was not enlivened. In any event, given that I accept Mr Mitchell's analysis, the issue is not one of information, but of assessment of the information, most of which was accepted by the Tribunal. Ultimately, the decision here was that the Tribunal did not view the harm that it accepted had been suffered by the appellant as sufficiently serious to constitute persecution. 15 As such, it was not a good indicator of a likelihood of persecution should the appellants be returned to India. Consequently, the Tribunal found that the risk of persecution for a Convention reason in the reasonably foreseeable future was remote. This finding was open to the Tribunal and there was no jurisdictional error in so deciding. It follows that his Honour's decision to that effect was correct and therefore that this appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 12 November 2007 The appellants appeared in person, assisted by an interpreter

Counsel for the First Respondent: J Mitchell

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 6 November 2007

Date of Judgment: 6 November 2007

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