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[2008] FCA 1808
Federal Court of Australia
2008-11-28
Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate delivered on 26 September 2008 (SZLZP v Minister for Immigration and Anor [2008] FMCA 1339) which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa. 2 The appellant is a citizen of India, and his claim for refugee status is based upon a fear of persecution arising out of his and his father's political opinion. 3 The appellant is a Muslim from the State of Kerala in India. He says that as a student he joined the student wing of the Communist Party of India (Marxist) (CPI(M)). He states that his father left the CPI(M) and joined the Communist Party of India (Marxist-Leninist) (CPI(ML)) in protest at the corrupt leadership of the CPI(M). The appellant followed his father and also joined the CPI(ML). He says that members of the CPI(M) took the appellant to an unknown location and tortured him. He claims that these CPI(M) members demanded that the appellant's parents leave the CPI(ML) and return to the CPI(M). He then says that he was released after 2 days with a warning that he would be kidnapped and tortured again if his parents continued to support the CPI(ML). He claims that he fears to return to India because the CPI(M) members will attempt to kidnap him in order to coerce his parents to return to the CPI(M). He also asserts that the police in India will not provide him with adequate protection. 4 The appellant's grounds of appeal appear not to have been drawn by a lawyer, and do not advance any new grounds which were not relied on below. The grounds are not particularised and lack any basis. He contends that (1) the Federal Magistrate 'failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the Judiciary Act 1903'; and (2) 'The Federal Court ought to hold that Honourable Magistrate erred in accepting that the Tribunal knew that the applicant will not face persecution if returned to country of origin.' 5 It appears that the appellant contends that the Federal Magistrate's decision is wrong in law because the Federal Magistrate failed to find that the Tribunal's decision was infected with jurisdictional error. 6 In the Court below the appellant advanced five grounds. Ground 1 contended that the Tribunal committed a jurisdictional error in so far as it made findings that were not open on the evidence before it. The appellant submitted that an applicant could not be expected to bring relevant evidence to prove his or her claim when leaving his or her country of origin. The appellant claimed that the Tribunal relied on country information provided by the country from which the appellant had escaped. The Federal Magistrate dismissed this ground. In doing so, the Federal Magistrate began by correctly observing that there exists no onus on the appellant to bring 'evidence in support of the circumstances for his departure from India': Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]. The Federal Magistrate held that this was not the substance of the Tribunal's findings when the Tribunal said: The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his claimed membership of CPI(ML). He has no documentary evidence of his father's approach to the police following the applicant's claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. 7 Whilst there is no onus on the appellant to produce evidence to the Tribunal, the Federal Magistrate correctly observed that 'it is for the applicant to advance evidence or argument that he wishes to be taken into consideration in support of his claim.' The Tribunal's findings were open to it. No jurisdictional error can be established on this issue. 8 Ground 2 contended that the Tribunal erred in law by failing to ask a question that it was required to ask. That was whether the Indian authorities provided a standard of protection that was comparable with international standards. The Federal Magistrate correctly dismissed this ground. The learned Federal Magistrate noted that the real issue was whether the Tribunal addressed the test with respect to the issue of State protection. After citing the relevant passage from the Tribunal's reasons that included advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that State protection in India is generally provided to persons who feel persecuted due to political reasons, the Tribunal gave him an opportunity to respond to the DFAT advice. The appellant chose not to do so. The Tribunal found that Indian authorities provided adequate and effective State protection, and it was open to it to reach that conclusion. No jurisdictional error exists with respect to this issue. 9 Ground 3 stated that 'the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or 'integers' central to the applicant claims; because the applicant was being questioned for number of hours without a break and felt stressed and intimidated.' The learned Federal Magistrate correctly dismissed this ground. In doing so, the Federal Magistrate relevantly said at [21]: The above claims are reproduced in point form in the Tribunal's decision under the heading "Claims and Evidence". The decision record indicates that the applicant affirmed that the main points of his written statement of claim were in effect summarised by the Tribunal. The Tribunal's decision does not expand to any significant effect the contents of that material…In the circumstances there does not appear to be any aspect of the applicant's claims that were not addressed in the Tribunal's decision record.
10 In respect of the issue of any possible stress or intimidation faced by the appellant, the Federal Magistrate said at [22], '[t]he need to ensure that a person affected by the decision of the Tribunal is accorded procedural fairness will often require that they be plainly confronted with the matters which bear adversely on their credit or which brings their account into question: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872.' The Federal Magistrate correctly dismissed this ground. 11 Ground 4 essentially claimed that the Tribunal did not address the issue of the appellant being kidnapped by his political opponents. The Federal Magistrate cited the segment of the Tribunal's decision dealing with this issue, and correctly dismissed this ground. 12 Ground 5 stated that the Tribunal, in making its determination, failed to record its decision in accordance with s 430 of the Migration Act 1958 (Cth). The ground contended that the Tribunal failed to record certain findings. The Federal Magistrate cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 which considers s 430. Yusuf holds that all that s 430 obliges the Tribunal to do is 'set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.' The learned Federal Magistrate correctly noted at [29] that 'there is no basis to suggest that the Tribunal has not complied with this section of the Act. Contrary to the particulars given to this ground, the Tribunal did not find that the applicant had been persecuted and this was not for a Convention reason. Rather the Tribunal did not accept that the applicant had ever experienced persecution, and found that given the availability of state protection his claimed fears of future harm was not well founded.' Thus, no jurisdictional error can be established in respect of this ground. 13 In his written submissions, the appellant has raised new arguments which were not considered below and which were not specified in his notice of appeal. 14 The appellant claimed that the Tribunal failed to consider whether a liberal Muslim, as such, was at risk of harm from radical Hindus. The appellant did not raise this matter in the Court below. He would not ordinarily be permitted to raise it on appeal as the appeal is from the reasons for judgment of the Federal Magistrate. The Federal Magistrate cannot be considered to have erred in failing to deal with a submission which was not advanced. I refuse leave for the submission to be advanced on appeal as it would be futile to do so. At the hearing before the Tribunal the appellant disavowed any claim to being a refugee based on his religion. He relied entirely on his and his father's political opinion. 15 The appellant also claimed in his written submissions that the Tribunal did not allow him to comment on its finding that he did not have a well founded fear of persecution. This submission suggests that the Tribunal should have invited the appellant to quibble with its decision after its making. It adds nothing to the appeal. This ground was not raised in the Court below and leave to raise it now should be refused on the basis of futility. 16 The appellant also submitted in his written arguments that the Tribunal: …failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials. That submission is difficult to follow and does not raise any specific jurisdictional error. Leave to raise it should be refused as no such ground was contended for before the Court below and it would be futile to allow it to be raised on appeal. 17 Finally, the appellant submitted in writing that the Tribunal failed to consider his claim for persecution as a member of the CPI(ML) and the persecution he experienced prior to leaving India. Again, this submission does not bear on any grounds raised below. In any event, it is wrong. The Tribunal did consider the appellant's claim to be persecuted as a member of the CPI(ML) and his claim that he was persecuted prior to leaving India. The Tribunal found those claims to be unsubstantiated and rejected them. It was entitled to do so on the material before it. 18 The Federal Magistrate carefully considered the Tribunal's decision and, in my view, correctly found that the Tribunal's decision did not involve a jurisdictional error. I have carefully considered the Tribunal's decision and the decision of the Court below. I can discern no jurisdictional error in the former and no appealable error in the latter. 19 For the above reasons, the appeal is dismissed with costs. I certify that the preceding fourteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall J.
Associate: Dated: 28 November 2008 The Appellant appeared for himself.
Solicitor for the Respondents: Sparke Helmore
SZLZP
Minister for Immigration & Citizenship