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Federal Court of Australia |
Last Updated: 17 May 2006
FEDERAL COURT OF AUSTRALIA
SZBSM v Minister for Immigration & Multicultural & Indigenous Affairs
SZBSM
v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND
ANOR
NSD 2009 OF 2005
RARES J
19 APRIL
2006
SYDNEY
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SZBSM
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
2. The appellant pay the first respondent's costs assessed in the sum of
$4,500.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
(REVISED FROM THE
TRANSCRIPT)
1 This is an appeal from a decision of the Federal Magistrates Court (SZBSM v Minister for Immigration [2005] FMCA 1490) refusing to grant judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 September 2003 and handed down on 15 October 2003, affirming the decision of the first respondent's delegate to refuse a protection visa to the appellant.
2 The appellant, who appeared in person, has filed an amended notice of appeal, setting out the following grounds, in substance:
‘(a) her Honour failed to hold that the Tribunal had made a jurisdictional error of an unspecified kind;
(b) the Tribunal had adopted an inappropriate approach to the question of whether the appellant had a well-founded fear of persecution:
(c) that the Tribunal was required to assess the fear of harm from the perspective of the appellant but adopted a line of questioning designed to ascertain why anyone would want to harm him rather than addressing the motive of his fear;
(d) the Tribunal did not properly consider the grounds on which the appellant claimed to have a fear of persecution by relying on country information rather than the appellant's evidence;
(e) the Tribunal identified a wrong issue by failing to identify a social or political group to which the appellant belonged in that it asked irrelevant questions and devoted time to establishing that the appellant's evidence was not credible. This ground is further particularised by the claim that the Tribunal's questions were designed to create confusion in the appellant's mind and that the Tribunal failed to assess witness evidence, presumably the appellant's evidence, as to the social or political group to which his claim related.
(f) the Tribunal adopted an unduly harsh approach to the question of whether the appellant's fear was well founded and came too quickly to a view adverse to his credibility.’
3 This morning, the appellant told me that he was a refugee, that he wanted to stay in this country and that what he had told the Tribunal was true. I asked him whether there were any arguments which he wished to advance as to why either the Tribunal or her Honour had committed an error which I could correct on appeal and he reiterated the submissions which I have just recorded.
4 The appellant was found by the Tribunal to be a citizen of India. He had arrived in this country on 11 August 2002. He made an application for a protection visa on 30 August 2002. On 8 November 2002 a delegate of the first respondent refused the application and on 6 December 2002, the appellant applied to the Tribunal for a review of the delegate's decision. As the Tribunal recorded in its decision, the appellant changed the claims which he was making, during the course of the hearing. The Tribunal was of course obliged to assess the claims which the appellant made and to give the correct and preferable decision on the review about those claims.
5 While the Tribunal is not required only to deal with the claims expressly articulated by an applicant for review, it must identify what the real claims are as the Full Court of this court said in NABE v Minister for Immigration [2004] FCAFC 263; (2004) 144 FCR 1 at 19 [60]. The Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it. Their Honours went on to say (144 FCR at 20 [63]) that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby be a jurisdictional error.
6 The appellant was found by the Tribunal to be a married man with two children, a boy and girl aged respectively, 14 years and 8 years. The children and his wife continue to reside in India. The basis of the claim with which the Tribunal was obliged to deal at the hearing, was noted by it to be differently emphasised to what had been in the appellant's primary application. As the Tribunal recorded at [18] in the course of the hearing, the appellant conceded that, contrary to his initial claim, he had never actually taken proceedings against former employees of his and that terrorists had not come to his home to warn him that he should not take any action against the employees still working in his business.
7 There had been an incident which the Tribunal appears to have accepted that he had been involved in a commercial dispute engineered by his business partner which played upon sectarian disaffection in his place of residence and business. The appellant was a Hindu, his business partner a Muslim, in an area Gujarat, in which the population is 88 percent Hindu and 9 percent Muslim. The Police, the Tribunal found, were predominantly Hindus. The Tribunal found it was implausible for the appellant to have suggested, as he did, that a complaint of about his intimidation or the like, to which he said he may have been liable made to the Police would fall on deaf ears.
8 The Tribunal identified the case which it was required to consider. This was that the appellant could not return to India because he feared that he would be attacked and killed by ‘terrorists’, to use the Tribunal's formulation of that expression, employed by his former business partner. The Tribunal found that the initial dispute which arose between the appellant and his Muslim employees in the Godhra branches of the business, Perry's Foods, may have had some inter-religious connection to the destruction of the Babri mosque in 1991. However, it found that the essential and significant reason for the situation which evolved over a number of years into the destruction of the partnership was the initiative of the appellant to dismiss the Muslim employees of the business.
9 The Tribunal found that although a compromise had been reached between the appellant and his Muslim partner, their relationship and the appellant's relationship with the remaining Muslim employees was irreparably damaged, and had been exacerbated by the appellant later making threats against the remaining Muslim employees. The Tribunal said that it was satisfied that by the end of February 2002, the Muslim partner decided to use disaffection in the Gujarat branches of the business to try to take full control of it and that it was plausible that the partner used the then explosive situation in Gujarat to try to frighten the appellant into relinquishing his involvement in the business, a plan which was entirely successful.
10 The Tribunal found, at [50]:
‘In my view, the troubles in the business and the machinations of the Muslim partner were private matters with no mistreatment that the [appellant] may have suffered because of the actions of his partner having any Convention nexus.’
11 The Tribunal went on to find [51] that the appellant was a victim of the machinations of a business partner motivated by greed who was seeking to take over the entire business for himself and that that fell outside the scope of the Convention. Accordingly, it held that there was no Convention nexus upon which the appellant could base a claim. The Tribunal concluded after reviewing the evidence that it was not satisfied that the appellant had suffered persecution for any Convention reason in the past and that there was no evidence before it to suggest or persuade it that there was a real chance that serious harm for any Convention reason would befall the appellant in the reasonably foreseeable future upon his return to India. For that reason, it came to the conclusion that the decision of the delegate should be affirmed.
12 The Tribunal performed its function of conducting a review pursuant to s 414(1) of the Migration Act 1958 (Cth) (‘the Act’) in a way which, in my reading, discloses no error which this court has jurisdiction to interfere with by way of prerogative relief or otherwise. Dealing with the appellant's grounds of review, the grounds that I have summarised as grounds (a) and (b) above, have no substance and are rejected.
13 The third ground criticises the way in which the Tribunal conducted its inquisitorial function. I can see no error in the Tribunal's approach to what is required under the legislation to be an inquisitorial function rather than an adversarial proceeding: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 451 [58] per Gummow and Heydon JJ with whom Gleeson CJ agreed at 438 [1].
14 As to ground (d), in my view, the Tribunal did properly consider the basis put forward by the appellant for his fear of persecution. It was entitled to look at country information against which it could assess what the appellant put forward to it and I see no error in what the Tribunal did. As to ground (e), the Tribunal correctly identified the appellant's religious group as being Hindu in a predominantly Hindu part of India. Quite what his social or political group is alleged to be does not appear from the material, unless it is some kind of argument that people in business partnerships fall into such a group. No group was identified or articulated by the appellant or on the material put before the Tribunal in a way which would justify the Tribunal in doing anything other than dealing with the matter as it appeared to have done. I see no legal error in that approach. I reject this ground.
15 As to ground (f), the assessment of the appellant's credibility was entirely within the province of the Tribunal to determine. There is no basis whatsoever on the material before me to conclude that the Tribunal made any error in the way in which it approached the assessment of credibility and I reject this ground.
16 Her Honour, the trial judge, proceeded to examine the appellant's claims in a way which does not reveal any error and I agree with her Honour's findings for the reasons that she gave that the grounds adumbrated by him at the hearing should be rejected. At the call over, I raised a question as to whether as to whether there was any basis to consider that the Tribunal had used material which had not been provided by the appellant and was not otherwise excepted from the requirement of notification pursuant to s 424A(1) of the Act, by reason of what appeared in pars 18 and 47 of the Tribunal's reasons.
17 I need not set those out, as they record what had been the original claim of the appellant and its revision at the hearing to a different claim. The Tribunal, I am satisfied, was identifying the claim which the appellant was putting forward in those paragraphs and then moved to consider that claim as opposed to using information that had previously been put forward as a claim in a way that formed a reason for rejecting the application for review. For these reasons, the appeal must be dismissed.
Associate:
Dated: 16 May 2006
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Appellant:
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In person
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Counsel for the Respondent:
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RA Pepper
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Solicitor for the Respondent:
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Clayton Utz
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Date of Hearing:
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19 April 2006
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Date of Judgment:
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19 April 2006
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/569.html