SZKIR v Minister for Immigration and Citizenship

Federal Court of Australia|2007-11-20|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Cameron FM dated 21 August 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 30 January 2007. The Tribunal had affirmed a decision of a delegate of the first respondent dated 29 September 2006 wherein the delegate refused the grant of a protection visa to the appellant.

Background 2 The appellant is a citizen of India. He arrived in Australia on 23 May 2006 and applied for a protection visa on 3 July 2006. The appellant claimed to have suffered persecution from relatives and members of extremist Hindu groups on the basis of his membership of a particular social group, for his political opinion, and for his Muslim religion. 3 The appellant claims he was the target of relatives who wanted an inheritance of property that had been transferred to him by his uncle. The appellant claims that his uncle and father were killed by the relatives and his life was threatened in the course of the proceedings. The appellant asserts that he was in fear of his life and attempted to move to Malaysia, but as he was unable to stay in Malaysia permanently he returned to India and secretly continued living at his place of residence. 4 In 2003 the appellant claims his shop was burnt down by opposition party supporters in revenge of an incident in 2001 where several Hindus and Muslims were killed. The appellant contends that because of his complaint to the police, the opposition supporters attacked him and his family and threatened to kill him if the complaint was not withdrawn. 5 The appellant also claims to be a member of the All India Anna Diravida Kalagam (AIADMK) Party, and that when the party lost the election in 2006 the opposition ruling parties spread rumours he was a Muslim terrorist and that he was to be arrested. The appellant claims that he was attacked three times and therefore went to Dubai, but was still threatened even there and quickly returned to India where his political opponents attempted to kill him by driving a truck into his motorbike. The appellant claims to fear for his life if he were to return to India.

The Tribunal's decision 6 The Tribunal found that the appellant was not a credible witness, and it was not satisfied the appellant had a well founded fear of persecution on the basis of his religion, political opinion or particular social group, due to the following findings: · the dispute over the uncle's property with the brothers did not involve political opinion as the essential and significant reason for the threats by the brothers, but rather it was essentially a personal conflict motivated by personal gain, and therefore did not constitute persecution for a Convention reason · the appellant had returned to India from other countries on a number of occasions · the police report indicated the appellant's shop was burnt in an accidental fire, and the appellant had falsely claimed that the shop fire was deliberately lit by political opponents to advance his refugee claims · the appellant's evidence regarding the attacks on himself and his house were vague and lacking in detail · the appellant did not hold a leading position in AIADMK · the road incident was nothing more than an accident; and · the appellant had already applied to come to Australia when AIADMK lost the election and the terrorist rumours began. 7 The Tribunal found that even if the appellant had a well founded fear of persecution, he could reasonably relocate within India. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

Hearing before Cameron FM 8 Before Cameron FM the appellant filed an application on the 14 March 2007 seeking review of the decision of the Tribunal on the following grounds:

That the Tribunal "failed to internalise the circumstantial ground of the review" and breached ss 424, 430, 349, and 400 of the Migration Act 1958 (Cth).
That the Tribunal "failed in its written statement that a breach of the rules of natural justice" and therefore breached s 476 of the Act. 9 In the appellant's affidavit the following grounds are added:
That the Tribunal should have conducted its own investigations and erred in considering independent country information.
That the Tribunal failed to consider material provided by the appellant.
That the Tribunal failed to find that state protection was unavailable to the appellant.
That the Tribunal's decision was illogical. 10 In relation to these grounds of appeal, in summary his Honour: · viewed the first ground as simply seeking merits review, and considered that none of the sections referred to were relevant to the proceedings · noted that natural justice did not require an administrative decision maker to provide reasons, and found that s 476 of the Act did not provide a basis for setting aside the Tribunal's decision · found that the Tribunal had no duty to make its own inquiries, and noted that a Tribunal may use any information it considered relevant · was of the opinion that the Tribunal had identified the material provided by the appellant in its reasons, and noted that as the appellant did not particularise this ground, the ground must fail · in relation to the final two grounds, found that the Tribunal did not have to consider State protection as it found no well-founded fear of persecution existed. 11 As a general principle, his Honour found the reasoning of the Tribunal had been methodical and logical. His Honour therefore could find no jurisdictional error and dismissed the application.

Notice of Appeal 12 The appellant's notice of appeal to this Court was filed 4 September 2007 and raises ten grounds which are as follows:

The Federal Magistrate had failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth).
the Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision.
The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v The Minister for Immigration , Local Government and Ethnic Affairs (1994) 52 FCR 437.
the Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of the appellant's circumstances and consequences of the claim.
The Tribunal had ignored relevant material as to the appellant's political background which put his life at risk, relied in part on irrelevant material and made a finding which was erroneous or mistaken.
There had been a lack of procedural fairness in his case along the same line as Muin v Refugee Review Tribunal (2002) 190 ALR 601. In particular, the appellant claimed that his case was identical to Muin 190 ALR 601, where the Tribunal had misled the applicant before it in that case to believe that the Tribunal had read some material.
the Federal Magistrate did not consider the appellant's application dismissed on the date of hearing the application, and the appellant was not legally represented at the hearing before the Federal Magistrate.
the Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or "integers" central to the appellant's claim.
The Tribunal failed to carry out its review function and exercise its jurisdiction in that: · it did not consider the immense and intimidating pressure on the appellant from his own family members because his uncle wanted to transfer his property to the appellant · it did not consider the appellant's claim that his uncle's brothers-in-law and Diravida Munetra Kalagam (DMK) supporters would kill him if he returned to India.
The Tribunal had applied the wrong test, in particular: · by requiring independent evidence of facts before the Tribunal would accept a claim being made by the appellant the Tribunal was, in fact, placing high onus of proof on the appellant and failing to give the appellant the benefit of the doubt · the Tribunal left out individual elements of the appellant's claims and tested whether they individually amounted to persecution rather than looking at the claim as a whole to determine whether the claim amounted to persecution. 13 I note that these grounds of appeal are in substance identical to grounds of appeal by other appellants, including those of the appellant in SZINP v MIC [2007] FCA 1747 which appeal was before me on 14 November 2007.

Hearing before me 14 Both the appellant and the first respondent filed written submissions in these proceedings. The appellant was self-represented, and the first respondent was represented by Mr Mitchell of counsel. 15 The appellant at the hearing sought to file in evidence a letter purportedly from an official of the AIADMK party in Pakistan, which letter postdated the decision of the Tribunal. The appellant claimed that the letter supported his claims. Mr Mitchell objected to the letter being filed on the grounds of relevance. I upheld Mr Mitchell's objection, on the basis that the letter was only relevant to factual findings by the Tribunal with respect to whether the appellant had a well-founded fear of persecution in Pakistan. Such matters are solely matters for the Tribunal - the Court cannot engage in review of the merits of the appellant's claims (NAHI v MIMIA [2004] FCAFC 10 at [10]). 16 The written submissions of the appellant in effect constituted a further notice of appeal, by which the appellant sought to raise new grounds. These additional claims may be summarised as:

Actual bias on the part of the Tribunal member.
Failure of the Tribunal to consider the threat to the appellant's life and/or liberty, and the impact on him arising from his religious and political background.
Failure of the Tribunal to consider whether he would suffer serious harm in light of s 91R(2)(a) of the Act.
Failure of the Tribunal to "use the country information as specific however, the general information gathered by the Tribunal considered to weight against my case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information".
failure of the Tribunal to recognise that the appellant satisfied the definition of "refugee" as defined in Art 1A(2) of the Convention. 17 The appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised: O'Brien v Komesaroff (1982) 150 CLR 310 at 319, Coulton v Holcombe (1986) 162 CLR 1 at 7. In this case, the respondent in written submissions answered these additional claims. In the circumstances, I am prepared to deal with them.

Grounds of Appeal 18 The first respondent has submitted that, as the grounds of appeal are different to those raised before Cameron FM, I ought not allow them to be raised in this Court. However, as the first respondent is in a position to meet the appellant's grounds of appeal, as well as the submissions made by the appellant, I am prepared to entertain them. 19 In relation to the appellant's grounds of appeal in the Notice of Appeal, I make the following findings:

First ground of appeal 20 The first ground of appeal concerning s 39B is, in the absence of particularisation, meaningless. However, in the circumstances I am prepared to interpret this ground of appeal as referable to the other grounds of appeal and the orders sought by the appellant.

Second ground of appeal 21 In the absence of particularisation I cannot see any merit in this ground of appeal. I accept the submission of the respondent that the Federal Magistrate below considered the grounds in the appellant's application for review. The appellant bears the onus of proving legal error in the decision of the Tribunal, which he did not discharge before Cameron FM.

Third ground of appeal 22 Relocation within a country is only reasonable if a claimant has a well-founded fear of persecution in a part of the country for reasons specific to that part. If the claimant would continue to have a well-founded fear of persecution for a Convention reason elsewhere in the country, relocation is not an answer: Randhawa, SZATV v MIC (2007) 237 ALR 634. 23 In this case the Tribunal clearly considered that the appellant could reasonably be expected to relocate within India safely, in view of the facts that: o India is a large and heavily populated country o there are no official restrictions on moving from one state in India to another, and no local police checks on new arrivals o according to the appellant's own claims he had travelled overseas numerous times o there are large Muslim communities in several states in India o the appellant appears to have qualities necessary to enable him to relocate within India. 24 The appellant has not demonstrated that the Tribunal erred in relation to these findings.

Fourth ground of appeal 25 In the absence of particularisation this ground of appeal cannot be substantiated. In any event, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10], Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

Fifth ground of appeal 26 In my view this ground of appeal cannot be substantiated. The Tribunal in its decision clearly considered the appellant's political background and made findings in respect of his political opinions, including that the Tribunal was not satisfied that he had a political profile which would bring him to the attention of other political parties or authorities. Further, as the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for reason of political opinion it was unnecessary for the Tribunal to make findings as to every factual contention relating to his claims: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346-348.

Sixth ground of appeal 27 With respect to the appeal before me, in the absence of particularisation it is not clear to which material the appellant is referring in relying on principles articulated in Muin 190 ALR 601. There is no evidence before me that the Tribunal failed to consider material which it informed the appellant that it had considered.

Seventh ground of appeal 28 This ground of appeal does not give rise to a jurisdictional error.

Eighth ground of appeal 29 In the absence of further particularisation, this ground of appeal cannot be substantiated.

Ninth ground of appeal 30 It is clear in this case that the Tribunal concluded that the appellant was under pressure from family members because of their avarice. Unfortunately for the appellant, pressure or extortion based on his personal assets and his personal circumstances, as appears to be the case here, does not mean that the appellant is persecuted for reasons of membership of a particular social or political group, or otherwise for a convention reason: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. The Tribunal did not accept that the appellant had been persecuted because of his political beliefs. As I indicated earlier in this judgment, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10].

Tenth ground of appeal 31 Weight given by the Tribunal to evidence before it is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang 185 CLR 259. In this case, the Tribunal was not satisfied that the appellant's claims gave rise to a well-founded fear of persecution for a Convention reason. In those circumstances the Tribunal was required to affirm the decision under review: s 36(2) of the Act, SJSB v MIMIA (2004) FCAFC 225 at [15].

Bias 32 An allegation of apprehension of bias is a serious matter which must be specifically pleaded: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. The appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: see Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at 34; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 58 per Kirby J. 33 In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the Tribunal: MIMIA v Jia (2001) 205 CLR 507 at 519 and 531-532, re Refugee Review Tribunal, ex parte H (2001) 179 ALR 425 at 434, VFAB of 2002 v MIMIA (2003) 131 FCR 102 at 107. 34 In this case no actual bias can be inferred from the Tribunal's appraisal of the material before it.

Failure of the Tribunal to consider the appellant's circumstances 35 This ground of appeal cannot be substantiated. The decision record of the Tribunal clearly indicates that the Tribunal considered the circumstances and claims of the appellant, but was not satisfied that the appellant was persecuted for reasons of his religion or his political opinion. Accordingly the Tribunal was not required to make findings in respect of the appellant's factual contentions arising from the material before it: Yusuf 206 CLR 323.

Failure of the Tribunal to consider whether the appellant would suffer serious harm in light of section 91R(2)(a) 36 So far as relevant, s 91R of the Act provides: Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harmfor the purposes of that paragraph: (a) a threat to the person's life or liberty; … … 37 In seeking to rely on s 91R(2) however, in substance the appellant is asking the Court to engage in a review of the facts of his case. The Tribunal was not satisfied that the appellant feared serious harm for a Convention reason. In my view no jurisdictional error can be imputed to the decision of the Tribunal in respect of this claim.

Country information 38 The selection of country information and the weight given to such information is a factual matter for the Tribunal: NAHI v MIMIA [2004] FCAFC 10 at [11], VWFW v MIMIA [2006] FCAFC 29 at [63]. Accordingly, this claim does not reveal a jurisdictional error in the decision of the Tribunal.

Definition of refugee 39 The decision record of the Tribunal demonstrates that the Tribunal understood the concept of "refugee" within the terms of the Refugees Convention as amended by the Refugees Protocol, considered the appellant's claims, and was not satisfied that he was a person to whom Australia had protection obligations under the Convention. In my view this ground cannot be substantiated. 40 The appropriate order is that the appeal be dismissed.

The appeal be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 20 November 2007 Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitors

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