SZNSU v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-09|Before: Mr J, Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Barnes FM delivered on 27 September 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 18 March 2010, and handed down on 19 March 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellants, who are husband and wife, are citizens of India who arrived in Australia on 27 October 2008. On 9 December 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 19 February 2009. On 13 March 2009 the appellant applied to the Tribunal for a review of that decision. The Tribunal, differently constituted, ("the first Tribunal") affirmed the decision of the delegate in a decision handed down 16 June 2009. The appellant sought review of the Tribunal's decision by the Federal Magistrates Court, and on 16 December 2009, the Court made consent orders setting aside the decision and remitted the matter to the Tribunal to be determined according to law. The Tribunal, differently constituted ("the second Tribunal"), affirmed the decision under review on 19 March 2010. 3 In his application, the appellant husband ("the appellant") claimed to be a supporter of the Congress Party. He claimed that he ran a hardware factory in India, and employed a number of people from Northern India. He claimed that because of this, members of the Maharashtra Navnirman Sena ("MNS") political party attacked his factory on four occasions in 2008, as they wanted him to employ people from the local area instead. He claimed that as a consequence, he was required to close the factory and flee to Australia. 4 The second appellant made no claims of her own, but relied on the claims of the appellant as part of the family unit.

REFUGEE REVIEW TRIBUNAL 5 The appellant appeared before the second Tribunal on 11 and 26 February 2010 to give evidence and present arguments. After discussing the claims made by the appellant and the evidence before it, the Tribunal found it was not satisfied that the appellant was a person to whom Australia owed protection obligations. 6 The Tribunal was satisfied that the appellant was a citizen of India and was prepared to accept that his refusal to comply with the demands of the MNS to employ local Indians, rather than northern Indians, caused him to be imputed with an anti-MNS "political opinion". 7 However, the Tribunal determined that appellant's claims were in respect of a localised dispute which was seemingly limited to a particular place and occurred around two years ago. When asked whether he could provide any more recent evidence in support of his claims, the appellant could not provide any, apart from suggesting that the MNS wanted to ban the Australian cricket team from playing in Mumbai. Furthermore, the Tribunal had regard to the fact that the appellant has now sold his factory. Therefore, the Tribunal considered that it was purely speculative that he would meet with similar, or other relevant, harassment in the reasonably foreseeable future. 8 The Tribunal relied on independent country information to satisfy itself that the authorities in his home city were and are willing and able to provide protection from violence in these circumstances. On this basis, the Tribunal was not satisfied the appellant would face a real chance of Convention-related persecution in India if he was to return there. 9 Furthermore, the Tribunal noted that it had concerns with the inconsistent evidence provided by the appellant before the first and second Tribunal, and with the inconsistent evidence he provided in respect of certain photographs before the Tribunal. Specifically, the appellant identified the same man in separate photos as both a factory worker and an outside attacker. On this basis, the Tribunal formed the view that the photographs were false, and did not accept his story as to how the photographs came into existence. In light of this, the Tribunal found the appellant was not a witness of truth. 10 While the Tribunal advised the appellant of the timeframe he had to submit further material before it would make its decision, the appellant submitted no further material. In the circumstances, the Tribunal found the appellant's claims were not supported by independent evidence, apart from general reports about riots which occurred in February 2008. Ultimately, the Tribunal did not accept the appellant's substantive claims and was not satisfied that he faced a real chance of Convention-related persecution in India. On this basis, the Tribunal found the second appellant was also not entitled to protection in Australia. 11 For these reasons, the Tribunal affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT 12 On 14 April 2010 the appellant filed an application for judicial review of the Tribunal's decision. In an amended application filed on 1 July 2010 the appellant claimed the following (without alteration): 1. The Second Tribunal erred again in making inding of well-founded fear of persecution. It adpted an unduly harsh approach to the well founded fear. The stringenet application of the test may also result in error in assessment of finding in relation to well-founded fear. 2. Particulars: he applicant reminded the tribunal member about his written submission to the Immigration Department that on 12 February 2008, 26 April 2008, 15 July 2008 and 19 August 2008, MNS workers attacked on his factory and harassed the threatened the Applicant. The applicant was forced to leave the premises because of fear of life. There were 18 North Indian workers in the Applicant's factory. 3. The Second RRT also failed to identify the real issue of growing problems of anti-north Indians feeling in Mumbai. It made the decision without knowing exact and demographic environment of India. 4. Particulars The Tribunal made a jurisdictional error when Tribunal member misconstrued the facts and raised unnessary doubts over the credibility of witness. The second Tribunal also used the wrong test for persecution and real chance of harm. 13 In respect of ground 1, the Federal Magistrate held that the 'stringent application of the test' as a generally expressed contention, did not establish jurisdictional error. In particular, the Federal Magistrate noted that in its decision record, the Tribunal accurately outlined the relevant law and correctly applied it. The Federal Magistrate noted that para 2 of the grounds appeared to be the particulars to ground 1. In this regard, the Federal Magistrate held that insofar as the appellant took issue with the determination of the Tribunal, then he was merely seeking an impermissible merits review. 14 Regarding paragraph three of the grounds of review, the Federal Magistrate held that the Tribunal did understand and considered the appellant's claims - that he was targeted because he employed northern Indians at his factory. However, having rejected his credibility based on inconsistencies and issues in relation to the photographs, the Tribunal did not accept he had experienced the attacks as claimed. The Federal Magistrate held that in these circumstances, it was not necessary for the Tribunal to have regard to further demographic evidence in relation to the situation in India. The Federal Magistrate further noted that to the extent that the appellant was complaining about the Tribunal's finding based on country information in relation to the response of the authorities to the 2008 attacks, then this ground was not made out. This was because the choice and weight given to country information is a matter for the Tribunal to determine. 15 The Federal Magistrate also held that paragraph four of the grounds did not establish jurisdictional error, as it did not identify any particular fact that was said to have been misconstrued. The Federal Magistrate further noted that findings of facts, including findings of credibility, are a matter for the Tribunal, and that there was nothing before the Court to indicate that there was any error by the Tribunal relating to a jurisdictional fact. 16 Having found that the Tribunal decision was not affected by jurisdictional error, the Federal Magistrate dismissed the application for review.

APPEAL TO THIS COURT 17 By Notice of Appeal filed on 15 October 2010, the appellant raised the following grounds of appeal against the decision of Barnes FM (without alteration): 1. His Honour Federal Magistrate failed to hold that the Refugee Review Tribunal made a jurisdictional error when it wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution. 2. The appellant was denied procedural fairness in connection with the making of the decision. 3. The Tribunal made a jurisdictional error when it misconstrued the facts and raised unnessary doubts over the credibility of witness.

CONSIDERATION 18 At the hearing yesterday the first appellant appeared and was self-represented. Mr Pinder of Phillips Fox appeared for the Minister. 19 The first appellant submitted, in summary, that: the problems he faced in India continued to exist, and all evidence he had given to the Tribunal was true whether the Tribunal accepted it or not. 20 The grounds of appeal from the decision of the Federal Magistrate are unparticularised and unsubstantiated, and in my view are unmeritorious. Specifically: In relation to the first ground of appeal - it is not clear that the Tribunal applied the law in any manner incorrectly. The Federal Magistrate found that the Tribunal properly had regard to the meaning of well-founded fear as excluding a fear based on mere speculation, and that it considered the claims and evidence of the appellants before concluding on alternative bases that they did not have a well-founded fear of persecution. The appellants have not demonstrated that her Honour's finding in this respect was wrong. In relation to the second ground of appeal - I note that s 422B of the Migration Act 1958 (Cth) operates to exclude common law rules of procedural fairness: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]. In any event, the manner in which the appellants were allegedly denied procedural fairness is unclear in light of the facts that: the first appellant was invited to two hearings before the Tribunal to give evidence before the Tribunal and address any concerns the Tribunal had; the Tribunal raised with the first appellant concerns as to the inconsistencies in the appellants' evidence, and inconsistencies discernable in the photographs they had submitted; the Tribunal provided the appellants with additional time in which to present further information, which the appellants did not do. In relation to the third ground of appeal, it is trite to observe that findings of fact, including findings of credibility, are matters for the Tribunal. 21 The appropriate order is for the appeal to be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

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