SZMQX v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 5 February 2009. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 11 July 2008. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a protection visa. 2 The appellant is a citizen of India and is a Hindu. He claimed to fear persecution on the basis of religion and political opinion. He and his family were active members of the Rashtreeya Swoyan Sevak Sangam (the RSS), a Hindu nationalist organisation, in the State of Kerala where he lived. In 1987 there were communal clashes in the area between Hindus and Muslims and the appellant claimed that his father was injured in these clashes and died as a result. In 1992 the appellant claimed to have taken part in the Babri mosque incident in which Hindu extremists destroyed a mosque, giving rise to considerable communal violence. He said that he was subjected to threats from Muslims until he left India for Bahrain in 1998. He returned to India after four and a half years in 2003 and married. Six months later the appellant returned to Bahrain. He then returned to India in February 2007. 3 The appellant claimed that in July 2007 he was involved in a motor vehicle accident as he drove his grandmother to hospital. He said that the motor vehicle accident was an attempt by Muslim extremists to injure or kill him. His grandmother died in the accident and he was slightly injured. He said that the accident was reported to the police but nothing was done about it. 4 The Tribunal summarised the claims made by the appellant for the purpose of considering the essential elements of the claims as follows (at [57]): …The applicant claims that he fears harm on the basis of his religion (Hindu) and his political opinion (member of the BJP and RSS). He claims that his father died following an outbreak of religious violence in 1987 and that his shop was damaged in 1994. He claims that he has been subject to ongoing threats from Muslim extremists since 1992 following his participation in the destruction of the Babri Mosque (see country information points 49-50). He claims that some of his associates have been killed by Muslim extremists and he fears for his life should he return to India. He claims that he cannot avail himself of state protection because Muslims have an influence in the government… 5 The Tribunal then set out the reasoning in relation to each of those claims. It accepted that the appellant was a member of the BJP and for a time a member of the RSS, being organisations aimed at promoting a Hindu nationalist agenda. The Tribunal then considered the Babri mosque incident in 1992 and said that 100,000 Hindus participated in the event, which was largely orchestrated by the RSS. Given those numbers, the Tribunal found that the appellant may well have participated in the destruction of the mosque. The Tribunal also accepted country information concerning religious tensions in various parts of India and found that it was plausible that the appellant's father may have died in communal violence in 1987 and that the appellant's shop was damaged in 1994. The Tribunal then, however, determined that it was not satisfied that the appellant was subject to ongoing threats on his life or that he was a target of Muslim extremists intent on killing him on his return to India. The Tribunal found that the evidence about ongoing threats and recent experiences of harm were unconvincing. In particular, it found that the evidence concerning those allegedly attempting to kill the appellant was lacking in detail and found unconvincing the evidence that the car accident involved a Muslim extremist attempting to harm the appellant. 6 The appellant provided the Tribunal with some graphic photographs of persons seriously injured and claimed that these were photographs of his associates who were killed by Muslim extremists after he had come to Australia. The Tribunal made reference to newspaper articles relied upon by the appellant. The Tribunal was not satisfied that the photographs or the newspaper articles related to people who were associates of the appellant. 7 The Tribunal then turned to the question of religious persecution in India and accepted that there are religious tensions between Hindus and Muslims in various parts of the country. The Tribunal pointed out the endeavours of the Indian authorities to take measures to ensure religious harmony and prevent communal violence. The Tribunal then addressed the claim by the appellant that Muslims have such influence in government that he would be unable to avail himself of State protection because of his religious and political views. The Tribunal pointed out that although there are some States in which Muslims are a majority, Hindus make up 80 per cent of the population of India and are a significant group in Kerala. 8 Finally, having not accepted the version of events surrounding the car accident as proposed by the appellant, the Tribunal did not accept that the police had failed to take action following it. 9 The Tribunal concluded as follows (at [70]): The Tribunal does not accept that the applicant would be unable to avail himself of state protection by reason of his religion and political opinion in the event that he was to be at some time in the reasonably foreseeable future subject to communal religious violence as opposed to an instigator of such violence. 10 The appellant then made an application for review to the Federal Magistrates Court. In essence there was only one ground, namely, that the appellant had given adequate evidence to the Tribunal that he was physically assaulted and that he had provided evidence to the Tribunal that a friend of his who had been with him in the Babri mosque incident had been killed by Muslim criminals. He claimed that the Tribunal failed to consider his genuine claim. The Federal Magistrate dealt with this argument as follows (at [11]): The Tribunal is the finder of fact in these matters and whilst it may have been a jurisdictional error not to consider the evidence put forward by the applicant it is not a jurisdictional error to come to a conclusion about it which the applicant finds inimicable: SZDFZ v Minister for Immigration & Anor [2008] FCA 390 at [40] per Flick J. 11 On 2 March 2009 the appellant filed a notice of appeal in this Court. The notice of appeal stated four grounds. Ground 2 was simply a recitation of the evidence which the Tribunal had accepted at [58]-[60] of its decision. This paragraph did not constitute a ground of appeal. Ground 3 of the notice of appeal repeated the complaint made in the Federal Magistrates Court. In my view the Magistrate was correct in his conclusions stated at [11] of his reasons for judgment. 12 The remaining grounds 1 and 4 read as follows: 1. The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal. The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. … 4. The Tribunal is required to give accurate particulars of adverse information to the Applicant; its failure to do so is a jurisdictional error: SZEEU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS 13 These grounds seem to place reliance upon s 424A of the Migration Act 1958 (Cth) (the Act). This issue was apparently raised in the original application before the Federal Magistrate but was not included in an amended application. It is therefore an argument raised for the first time on appeal. The Minister did not object to the appellant raising this argument on appeal for the first time because the appellant was not legally represented before this Court or before the Federal Magistrates Court. 14 To the extent that it is possible to glean from the grounds of appeal some complaint arising from a failure to comply with s 424A of the Act, no such failure can be established. The Tribunal's decision was based on its view about the credibility of the appellant. The Tribunal's thought processes do not constitute information within the meaning of s 424A. To the extent that the Tribunal relied upon evidence from the appellant and documents produced by him, such material is excluded from the operation of the section pursuant to s 424A(3)(b). The photographs relied upon by the appellant would fall into this category. Finally, insofar as the Tribunal relied upon country information about the relations between Muslims and Hindus in India, that material is covered by the exception in s 424A(3)(a). 15 The appellant was assisted at the hearing of the appeal by an interpreter into Malayalam. It was clear from the short oral submissions made by the appellant that he had no understanding of the written grounds of appeal. He said they had been formulated by a friend. The appellant, however, was asked to identify the complaints he had about the judgment of the Federal Magistrate and the decision of the Tribunal. He made three points. First, the appellant said that the Federal Magistrate had said to him that the Federal Magistrates Court was not the place to present his whole story. No doubt this was a proper explanation by the Federal Magistrate to the appellant seeking to explain that the role of the Court was limited to judicial review. 16 Second, the appellant said that he had had a bad experience in relation to the provision of free legal advice. He had said to the Federal Magistrate that he had not received the benefit of any free legal advice. The appellant said that the Federal Magistrate told him he would get free legal advice, however, within two days of the hearing the decision of the Federal Magistrate was handed down. In fact it appears from the judgment of the Federal Magistrate that it was delivered ex tempore on the day of the hearing. In relation to the issue of free legal advice, the following appears at [12] of the Federal Magistrate's decision: …The applicant also told me that he had not been provided with legal advice pursuant to the Minister's Scheme as he had requested. There does appear on the file an invoice from the provider of that legal advice but the applicant denies it ever having been given. I propose to have this matter investigated by the Court but in the mean time would note that the provision of legal advice is a privilege and not a right. The failure to provide legal advice for a hearing in this Court cannot be held to be a jurisdictional error on the part of the Tribunal. The Federal Magistrate was correct in determining that no jurisdictional error arises from these circumstances. 17 Finally, the appellant said that it was very dangerous for him to return to India. This is a matter of fact which was determined by the Tribunal adversely to the appellant. No jurisdictional error is demonstrated in the way in which the Tribunal reached its conclusion. 18 For these reasons the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.