SZIBW v Minister for Immigration and Citizenship [2008] FCA 160 (26 February 2008)

SZIBW AND SZIBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2146 OF 2007

MCKERRACHER J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2146 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIBW First Appellant SZIBX Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2146 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIBW First Appellant SZIBX Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an appeal against a decision of a Federal Magistrate (Cameron FM) made on 17 October 2007 (SZIBW & Anor v Minister for Immigration & Anor [2007] FMCA 1660) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 November 2006.

2 The appellants are citizens of India. They arrived in Australia on 11 July 2005. On 10 August 2005 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 16 September 2005. On 13 October 2005 the appellants applied to the Tribunal for a review of that decision.

3 The decision of the first Tribunal, handed down on 13 December 2005 was dismissed and by consent by the Federal Magistrates Court on 26 May 2006 was remitted to a second Tribunal, the decision of which is the subject of the present appeal.

4 The appellants, who are from Gujarat, are a husband and wife both aged 44 years. Only the appellant husband made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention) with the appellant wife relying on membership of his family unit. As only the appellant husband made claims to fear persecution he will be referred to as the appellant.

5 In his application for a protection visa, the appellant claimed to have well-founded fear of persecution based on his Hindu religion and his political opinion. He claimed that as a result of the 2002 Hindu-Muslim riots, his shop was set on fire and he received threatening phone calls from a gang of Muslim fundamentalists. He claimed that he reported the fire but received no protection from police despite the Hindu party, Bharatiya Janata Party (BJP), being in power, received no compensation and could not reopen his business and ‘became poor’. He also claimed that he was attacked and injured by the Muslim gang as they did not want him to reopen his shop or remain in the area. He claimed that when he reported such issues to the police or the press he would get threats by Muslims or Hindus. He claimed Hindus were not protecting other Hindus because violence perpetrated on Hindus by Muslims attracted sympathy votes for the BJP. In a statement sent to the second Tribunal in September 2006 the appellant added that he had been harassed and threatened between 2002 and 2005 by the Muslim gang.

6 On 27 July 2006 the Tribunal sent a letter pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) to the appellant inviting the appellant to comment on information the Tribunal had before it such as the appellant’s protection visa application and initial statement of claim. On 18 August 2006 the appellant’s migration agent sent a statement to the Tribunal in response to that letter. On 23 August 2006 the Tribunal sent a further letter pursuant to s 424 to the appellant inviting the appellant to make further comments on the country information before the Tribunal and to answer further questions.

7 On 7 September 2006 the appellant’s migration agent sent a statement to the Tribunal in response to the s 424 letter. On 14 September 2006 the Tribunal sent to the appellant a further s 424 letter in response to the appellant’s reply on 7 September 2006. On 27 September 2006 the appellant’s migration agent sent a statement to the Tribunal in response to its 14 September 2006 letter.

8 The Tribunal accepted independent country information that showed there were Muslim-Hindu riots in Gujarat in 2002, and therefore found that the appellant’s claim regarding his shop being burnt was plausible and accepted his claim that he was beaten and told not to reopen the shop and to leave the area.

9 However the Tribunal did not accept that the Muslim gang threatened the appellant after 2002 as the appellant failed to mention that in the Tribunal hearing. The Tribunal also noted that the gang has known his whereabouts since 2002 but had not harmed or threatened him since then, therefore it did not accept that the appellant would be subject to threats or violence if he returned to India.

10 The Tribunal also rejected the claim that the appellant would not have access to State protection as it was inconsistent with independent country information that showed the majority of the State was Hindu.

11 The Tribunal noted that it was unnecessary to consider relocation but found the appellant could understand and speak Hindi sufficiently to relocate to other Hindi parts of India.

12 The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

13 On 29 November 2006 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed in his amended application that the Tribunal: failed to properly consider relocation; made a jurisdictional error by failing to consider State protection; breached s 424A of the Act as it did not give the appellant the opportunity to comment on all of the information that would be the reason or part of the reason for the decision; made a jurisdictional error as the appellant was denied a fair hearing; and misapplied the ‘what if I am wrong?’ test.

14 The Federal Magistrate noted that the Tribunal’s consideration of relocation was not comprehensive because it was not required following the Tribunal’s findings that the appellant did not have a well-founded fear of persecution.

15 His Honour found that the second ground was based on an inaccurate translation of the appellant’s evidence before the first Tribunal. This difficulty did not arise before the second Tribunal because it had an original recording and a correct translation of the evidence; the second Tribunal’s findings on State protection did not rely on the appellant’s evidence; and the Tribunal did not make its finding about a well-founded fear of persecution based on the adequacy of State protection.

16 His Honour noted there was no obligation on the Tribunal under s 424A of the Act to put all information to the appellant, due to the exceptions within the provision and it was noted that the Tribunal discharged its obligation by virtue of the letters it sent to the appellant.

17 His Honour found that pursuant to s 428(5) of the Act there was no obligation on the Tribunal to provide a second hearing as the appellant had already given evidence to the first Tribunal. In relation to the final ground the Federal Magistrate found that the Tribunal did not have any real doubt as to its decision. His Honour therefore could find no jurisdictional error and dismissed the application.

18 In the notice of appeal filed on 30 October 2007 in this Court, the appellant raised four grounds of appeal, namely, that the Tribunal erred in not considering relocation in detail; finding that the appellant did not have a well-founded fear of persecution; failing to assess the appellant’s claims on the grounds of political opinion and particular social group as defined in Art 1(A) of the Convention; and not inviting the appellant to a hearing to substantiate his claims.

19 Although these grounds of appeal are directed against the Tribunal rather than the Federal Magistrates Court, for the purpose of this appeal, the grounds will be considered as alleging a failure on the part of the court below to identify those failures of the Tribunal.

20 There was no appearance of the appellant on the day of hearing the appeal. I allowed an additional 20 minutes for the appellant to appear. There appears little doubt from the Court file that the appellant did receive adequate and correct notice of the address at which the hearing would take place. I am mindful that the original notification referred to a different address but the subsequent notification clearly identified the correct address for the Court.

22 Ms Clegg did reiterate that the original notification to the appellant had been to the Queens Square address of the Court whereas the subsequent notification had been to the correct address of the Court at 80 William Street. On the motion for judgment in default of appearance I reserved my judgment and asked counsel to address me on the merits of the application.

23 Having considered both the motion for dismissal for want of non-appearance and the merits, I am satisfied that the appeal should be dismissed on the basis of the non-appearance of the appellant pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act.

25 His Honour found that the Tribunal’s decision was not based upon its ‘insubstantial investigation of the relocation issue’ ([18]). The Minister, by notice of contention, would challenge that conclusion but, in any event, submits that if the Tribunal decision is read as a whole and the dialogue about relocation at the hearing is considered, the reasoning on relocation is sufficient to sustain an independent basis for the conclusion that Australia did not owe protection obligations to the appellant.

26 Reasonableness of relocation must be considered in light of the appellant’s personal circumstances. If relocation in light of an appellant’s particular circumstances would be unreasonable it should not be taken into account as an answer to a claim of persecution (Randawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 per Beaumont J at 278).

27 On the facts of this case, however, the independent country information before the Tribunal as well as the detailed findings of the Tribunal in relation to those issues meant that the only plausible barrier to relocation for the appellant was a language barrier. The question of language was then considered by the Tribunal in the context of its relocation finding.

28 In my view the relocation finding was open to the Tribunal and the reasonableness of relocation in the light of the appellant’s particular circumstances was adequately considered.

29 Even if that were not so, there was an alternative and entirely independent basis for the Tribunal’s decision. A complete answer to any inadequate reasoning by the Tribunal in relation to relocation is the unassailable conclusion that the appellant would not be subjected to ‘threats, much less actual violence, if he were to return to his home now’.

30 In my view this ground of appeal is not made out. It follows that it is unnecessary to consider the Minister’s notice of contention.

31 In my view this is not a ground of appeal which the Court is empowered to consider. Rather, it is demonstrably an attempt to review the merits of the Tribunal’s ultimate conclusion and therefore not a proper ground of judicial review. As the Court does not have jurisdiction to consider this issue, it is not a proper ground of appeal and must be dismissed.

32 This is not a ground of appeal which was advanced before his Honour but, in any event, the Tribunal did proceed on the basis that the appellant did have Convention related claims. It did so by accepting, at least by necessary inference, the appellant’s claims as being Convention related. In particular, the relevant claims were those of fear of persecution by reason of his religion or membership of particular social group.

33 There was no issue before the Tribunal as to whether the claims were Convention related. The Tribunal assumed that they were but rejected the claims and held that they were not substantiated. It concluded that the appellant did not have a well-founded fear of persecution on his return to India.

35 This ground was examined closely by his Honour in the Court below ([29]-[37]). His Honour observed that:

It followed therefore that, at least within the circumstances of this particular case, there was no need for the Tribunal to conduct a second hearing. His Honour’s conclusion on that issue was correct. In procedural circumstances similar to the present (see [27]) in SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 (in the Full Federal Court after explaining the ground of appeal that was before the Court said at [37] and [38]):

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

No appearance by the Appellants

Counsel for the First Respondent:	L Clegg

Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	25 February 2008

Date of Judgment:	26 February 2008