SZOMA v Minister for Immigration and Citizenship

Federal Court of Australia|2010-11-16|Before: Foster J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 16 August 2010 (SZOMA v Minister for Immigration [2010] FMCA 620) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 20 May 2010 and handed down on the same day. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of India who arrived in Australia on 19 August 2009. He is a Muslim from Sardashahr in Rajasthan. 3 On 29 September 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. In a statement which accompanied his protection visa application, the appellant claimed that he had been persecuted in India by reason of his political affiliation and religion. The statement was in the following terms: STATEMENT OF [THE APPELLANT]

I, [appellant's name] of [appellant's address], am an Indian Citizen arrived in Australia with a Cricket team on 19 August 2009. I am seeking protection in Australia so that I do not have to go back to India where I had been persecuted because of my political and religious background. I was born and brought up in a moderate Muslim Family in Sardarshahr.

My parents were member of Communist party and they sacrificed their life for the ideology of communism. I was taught ideology of communism by my parents. I came to know that the ideal of the communist party is to bring an end to the suffering of the working class and bring a radical change for the development of the whole society through equality and eliminating economical disparities. But I have not been able to accept the upper class people's atrocities or atrocities in the name of communism, caste, religion and class of the society.

When my father walked out from the CPI(M) party in protest against the leader who were corrupted and joined Congress party, I also followed him and joined Congress Party. We are working class family. As a profession my father was a shopkeeper. I have one brother and three sisters. We are working class family. Our opportunities were limited in India because of our religious background.

When I became actively involved in politics, I had a different idea. I thought through my political involvement I would be able to provide a voice for the Muslim minority in Sardarshahr. I had always felt that the state government did not govern for the interest of Muslim and that the only way for Muslim citizens to be represented in the political process was through the elections of Muslim politicians. I had always desired to be a significant presence in my community and believed that a political carrier could assist me in this way.

After becoming a member of the party I became involved in various activities to help to increase its popularity within the community. During the state's legislative elections in I worked very hard for Congress candidate. Through my hard work the party increased its popularity, and my profile improved within the party. I was also well known to members of the opposing party BJP and CPIM.

Before the parliament election I was approached by the BJP members and asked me to stop campaigning for Congress party candidate. I was very popular amongst Muslims in the local community. They warned me about my activities against them. However, I refused to listen their warning and continued my party work in Sardarshahr. During the election I became involved in various activities including placing Congress candidate posters, handing out pamphlets which details about the party's policies and reading out announcement about the candidate on a loudspeaker whilst driving around the town. While I was doing that the BJP members attacked me and I was beaten mercilessly. The following day BJP thugs had entered my house and assaulted my family members. I rushed to the police station and made an entry. But they did not do anything against those. Being a Muslim it is the main problems we faced day to day in India.

In parliament election BJP lost and Congress party came to the power in central. After couple of days I was going to shopping centre near my house. On the way I was attacked by the local BJP members. But luckily I realised their motives and ran away. I reported the matter to local police and asked my party members to help in this situation. I was told to leave the house for while because they were informed that further attacks on Muslim were planned. Within one week they killed two Muslims youth in different area. All reported as an accidental death. They came to my house and asked my parents about my location. My father confronted them and as a result of that he was dashed to the ground and kicked. When my mother and sisters tried to stop them they were assaulted. These goons had graved my mother hair and warned her to me to stop all my political activities. This has caused lasting damage mentally and physiologically. When I heard this I was shaking convulsively with fear of life and my family. My party people helped me to organise my visa through cricket team.

At present I am very much depressed over my helpless situation. I fear of returning to India because my family safety. The BJP members threatened me with violence. I believe that if I go back to India, the BJP members will kill me. It has happened too many of my fellow Muslims, who were against them. 4 By letter dated 4 December 2009, the Tribunal invited the appellant to attend an interview with the delegate on 10 December 2009. 5 At the interview, the appellant told the delegate that he had been threatened with assault by BJP goons following the elections but had managed to escape. He claimed that he was advised to leave his family home as further attacks were planned and that he heard a week later that two Muslim youths had been killed. In addition, the appellant claimed that his family advised him that the BJP had been to their home looking for him. He then obtained a visa to travel to Australia with the help of the Congress Party and at the time of the interview stated that he feared that he would be killed if he were to return to India. At the interview, the appellant indicated that he proposed to provide further evidence to corroborate his story but no such evidence was ever provided. 6 On 4 February 2010, the delegate advised the appellant that his protection visa application had been refused. The delegate considered that the appellant did not have a genuine fear of harm, that there was no real chance of persecution occurring and that, for those reasons, the appellant's claimed fear of persecution was not well founded. 7 In coming to that conclusion, the delegate noted that the appellant had not provided any documentary or other evidence in support of his claims and that he had relied solely on his written statement and the responses and submissions made by him at the interview on 10 December 2009. The delegate also concluded that the appellant's responses at the interview were not credible. The delegate considered that the appellant's failure to provide documentary evidence to support his claims was a significant matter which cast doubt on the veracity of his claims overall and on the genuineness of his claims of fearing persecution. The delegate concluded that the appellant's claims did not rise above uncorroborated assertions and did not accept the appellant's responses given at the interview.

The Proceeding in the Tribunal 8 On 2 March 2010, the appellant applied to the Tribunal for a review of the delegate's decision. On 14 April 2010, the appellant attended a hearing before the Tribunal to give evidence and present arguments in support of his case. He had been invited to do so in a letter from the Tribunal dated 15 March 2010. 9 On 20 May 2010, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the appellant. It notified the appellant of its decision on 21 May 2010. In its Reasons, the Tribunal accepted that the appellant was a 22 year old Muslim from Sardashahr in Rajasthan and that Muslims are in the minority in Rajasthan. However, at [52]-[54] of its Reasons, the Tribunal found that the appellant's claim to have been persecuted on the basis of his Islamic religion had been undermined by inconsistencies in his story and lacked credibility overall. 10 The Tribunal took the view that the appellant's story was so lacking in credibility that it was not satisfied that he had any relevant or significant interest or profile in politics in India at all. The Tribunal found that there was insufficient evidence to support a finding that, either on its own or cumulatively, the appellant's status as a Muslim in Rajasthan would give rise to a real chance of his being persecuted. The Tribunal also found that the appellant had not been truthful about his claimed membership of the Congress Party and that his untruthfulness generally went to the heart of his case. 11 In its Reasons, the Tribunal considered the appellant's claims in detail. It did so by reference to the interview which he had had with the delegate, the material referred to in the delegate's decision, the appellant's protection visa application and the testimony of the appellant before the Tribunal on 14 April 2010. It also referred to independent country information. 12 At [32]-[51] of its Reasons, the Tribunal summarised the conduct of the hearing before the Tribunal, the questions put to the appellant at that hearing and the answers given by the appellant to those questions. It is not necessary to list in detail in these Reasons the many matters to which the Tribunal referred in this section of its Reasons. It is sufficient to note that on a fair reading of those paragraphs, the Tribunal drew to the attention of the appellant all of the matters which it was required to point out to him and did so adequately and fairly. In the end, at [52]-[54] of its Reasons, the Tribunal said: 52. The Tribunal accepts that the Applicant is a Muslim from Sardarshahr in Rajasthan. The Tribunal accepts that Muslim are in the minority in Rajasthan. The Applicant has based his religion claim on what happened to him as a Muslim campaigner for the Congress Party. Thos [sic] claims are undermined by inconsistency and lack of credibility. Meanwhile, the Applicant indicated that his family lives and works in Rajasthan and, when asked to give examples of difficulties they face there, he talked only of events where the BJP continued to seek him over his role with Congress, claims that the Tribunal finds lacking in consistency and credibility. The Tribunal finds insufficient evidence in this case to support a finding to the effect that on its own or even cumulatively, the Applicant's status as a Muslim in Rajasthan would give rise to a real chance of his being persecuted. 53. The Tribunal, in fact, finds the Applicant's substantive claims thoroughly lacking in credibility. He has been misleading about his claimed membership of the Congress Party. He gave far-fetched fanciful evidence of not needing to know during an election campaign when the election date was because the people he was trying to persuade to vote would have known the date anyway. He thus portrayed uncommitted voters as having more knowledge of the election in this way than he did. In light of the Tribunal's findings to the effect that the Applicant thoroughly lacks credibility, and its findings that the Applicant has misled the Tribunal in regard to his claims to fear harm from the BJP and non-Muslims and the police (directly or indirectly, tacitly or actively), the Tribunal finds the Applicant's credibility has been so weakened that the factual "well", as it were, has been poisoned beyond redemption. 54. The Applicant is so lacking in credibility that the Tribunal is not satisfied that the Applicant has any relevant or significant interest or profile in politics in India at all. 13 For the reasons explained by the Tribunal, the Tribunal found that the appellant did not have a well-founded fear of persecution in India for a Convention related reason. It therefore affirmed the delegate's decision to refuse to grant a protection visa to the appellant.

The Decision of the Federal Magistrate 14 On 17 June 2010, the appellant filed an Application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. In his Application for judicial review of that decision, the appellant raised the following grounds 1. The second respondent committed jurisdictional error by failing to address the applicant's claims in the way they were made,

a. The applicant stated in his protection visa that he was a active member of Congress party.

b. He claimed that BJP thugs threatened him with violence because of his activities with Congress party.

c. The Tribunal did not consider the way he claimed to be involved with Congress party in rejecting his claims of involvement with Congress party.

The Tribunal failed to consider an integer of the applicant's claims, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection. 15 In her Reasons, the Federal Magistrate reviewed the history of the appellant's attempts to secure a permanent place in Australia. At [1]-[27] of her Reasons, the Federal Magistrate referred to the statement made by the appellant in support of his protection visa application as well as the content of the decisions of the delegate and of the Tribunal. In her Reasons, the Federal Magistrate rejected both grounds of appeal relied upon by the appellant. In respect of Ground 1, the Federal Magistrate said, at [34]-[36] of her Reasons: 34. I explored with the Applicant what he meant by Ground 1. The Applicant agreed that, as asserted in Grounds 1(a) and 1(b), the Tribunal had stated that the Applicant had said in his protection visa that he was an active member of the Congress Party and that BJP thugs had threatened him with violence because of his activities with the Congress Party. He was unable to explain to the Court how it was that he asserted that the Tribunal had failed to address those claims. 35. Ultimately, the Applicant stated that the Tribunal should have accepted that he was an active member of the Congress Party and that BJP thugs had threatened him with violence because of his activities with the Congress Party. The Applicant asserted that the Tribunal had misunderstood his claims but could not explain what that misunderstanding was. The Applicant agreed that, at the heart of his complaint in Grounds 1(a) and 1(b) was a disagreement with the findings of the Tribunal. I explained to the Applicant that, if there was evidence and material before the Tribunal to allow it to make those findings, the Applicant's disagreement with those findings would not be sufficient to establish jurisdictional error. 36. In relation to Ground 1(c), the Applicant asserted that the Tribunal did not believe that the Applicant was involved with the Congress Party, but declined to make any further submissions in support of Ground 1(c). 16 The Federal Magistrate correctly identified that the essence of the appellant's case in relation to Ground 1 was his disagreement with the findings of fact made by the Tribunal. The Federal Magistrate then went on to discuss Ground 1 and concluded that: (a) The Tribunal's decision record made it clear that the Tribunal considered that the appellant's claims to have been involved with the Congress Party had not been accepted by the Tribunal; (b) The Tribunal had clearly alerted the appellant of its concerns about his credibility and the Tribunal was satisfied that, in the exchanges at the interview with the delegate and at the Tribunal hearing, the appellant had had every opportunity to put forward everything that he wished to say in support of his application; and (c) The Tribunal's findings and conclusions were clearly open to it on the material before it. For the reasons which the Tribunal gave, the adverse credibility findings which it made were open to it and were quintessentially a matter for the Tribunal, as to which see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. 17 As far as Ground 2 raised before the Federal Magistrate was concerned, her Honour noted that this ground was not supported by any particulars, evidence, or submissions. She noted that, given the basis upon which she had rejected Ground 1, the issue of effective State protection did not arise nor was there any obligation on the Tribunal for it to consider that its findings might be wrong where those findings were not attended by any real doubt. Having found no jurisdictional error on the part of the Tribunal, the Federal Magistrate dismissed the appellant's Application.

The Appeal in this Court 18 The appellant filed a Notice of Appeal in this Court on 3 September 2010. In that Notice of Appeal, the appellant sought to have the judgment of the Federal Magistrate set aside and the matter remitted to the Tribunal to be determined according to law. The appellant also claimed an order for costs. The grounds of appeal specified by the appellant in his Notice of Appeal were as follows: 1. The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation. 2. The FM failed to consider the Tribunal fell into jurisdictional error in that it did not consider all of the applicant's claims. 19 Each ground relied upon by the appellant in his Notice of Appeal must be rejected.

Ground 1 (the Tribunal's unreasonableness in ignoring the aspects of persecution and harm alleged by the appellant) 20 Ground 1 was not raised before the Federal Magistrate. Therefore, the appellant requires leave to raise that ground in this Court. The principles relevant to the exercise of the discretion to grant leave to an appellant to rely on new grounds of appeal not raised at first instance were explained by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. The primary consideration is whether "it is expedient in the interests of justice to do so" (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]). Whether the new grounds have a reasonable prospect of success is a matter which is relevant to the exercise of the discretion (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] (p 85)). 21 In my view, the appellant has no reasonable prospect of successfully prosecuting Ground 1. I am therefore not prepared to grant leave to the appellant to raise this new ground of appeal. 22 By Ground 1, the appellant asserts that the Tribunal unreasonably rejected his claims to fear serious harm on the basis of his political opinion and religion, and that this rejection was in breach of s 91R of the Migration Act 1958 (Cth) (the Act). Section 91R of the Act provides: 91R 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 harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 23 The Tribunal expressly referred to s 91R of the Act at [13]-[15] of its Reasons under the heading "Relevant Law" and subheading "Definition of 'refugee'". There is no reason to think that the Tribunal's consideration of the appellant's evidence was not informed by the terms of that section. When regard is had to the appellant's Notice of Appeal, it seems that he wishes to contend that, in finding that the harm which he alleged he had experienced in India did not rise to the level of serious harm constituting persecution for the purposes of s 91R of the Act, the Tribunal acted unreasonably. 24 This ground challenges not so much the approach of the Tribunal, but the conclusions which it reached on the facts. Findings of fact are the exclusive province of the Tribunal subject to issues of unreasonableness (see SZLVM v Minister for Immigration and Citizenship [2008] FCA 1245 at [12]). No unreasonableness is manifest on the face of the Tribunal's reasons in the present case. The findings of fact and conclusions reached by the Tribunal were clearly open to it and were carefully and rationally exposed. 25 For these reasons, I am of the view that Ground 1 has no merit.

Ground 2 (the Tribunal's failure to consider all of the appellant's claims) 26 The appellant has not attempted to provide particulars of this ground of appeal nor has he sought to substantiate it with any evidence or submissions. In any event, in my view, there is no basis in the materials before me to support this ground of appeal. In my view, the appellant has failed to make out this ground.

Conclusions 27 For the above reasons, neither of the grounds of appeal relied upon by the appellant has been made out. The appeal must therefore be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

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