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SZOIM v Minister for Immigration and Citizenship [2011] FCA 83 (10 February 2011)

Last Updated: 14 February 2011

FEDERAL COURT OF AUSTRALIA


SZOIM v Minister for Immigration and Citizenship [2011] FCA 83


Citation:
SZOIM v Minister for Immigration and Citizenship [2011] FCA 83


Appeal from:
SZOIM v Minister for Immigration & Anor [2010] FMCA 810


Parties:
SZOIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL


File number:
NSD 1548 of 2010


Judge:
REEVES J


Date of judgment:
10 February 2011


Date of hearing:
8 February 2011


Place:
Sydney


Division:
GENERAL DIVISION


Category:
No Catchwords


Number of paragraphs:
27


Counsel for the Appellant:
The Appellant appeared in person


Counsel for the First Respondent:
Ms R Graycar


Solicitor for the First Respondent:
Clayton Utz


Counsel for the Second Respondent:
The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1548 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZOIM
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:
REEVES J
DATE OF ORDER:
10 FEBRUARY 2011
WHERE MADE:
SYDNEY

THE COURT ORDERS THAT:


  1. The notice of appeal filed on 10 November 2010 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1548 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZOIM
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:
REEVES J
DATE:
10 FEBRUARY 2011
PLACE:
SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal against a judgment of a Federal Magistrate delivered on 21 October 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

  1. The appellant is a citizen of India. He first arrived in Australia on 3 June 2008 and stayed until 25 August 2008. He then re-entered India through Hyderabad airport, and departed India again through that same airport and arrived in Australia for the second time on 21 December 2008. On 20 March 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application on 9 June 2009. On 6 July 2009 the appellant applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate’s decision.

CLAIMS OF POLITICAL AND OTHER PERSECUTION

  1. The appellant claimed to fear persecution in India by reason of his political opinion, race and religion. In his protection visa application, the appellant claimed to be a Muslim businessman from Hyderabad, who became involved in the Bharatiya Janata Party (“BJP”) in 1999 when he was elected as its “youth president”. He claimed to have suffered from discrimination from within the BJP on racial and religious grounds, so he decided to change parties. He claimed that in 2001 he became the youth president of Majlis-e-Ittenadul-Muslimeen (“MIM” or “AIMIM”). The appellant claimed that the BJP became jealous that he had taken his skills to another party. He claimed there was an incident in Hyderabad in which someone else was ambushed and killed and these events led to him quitting politics in 2003 and, instead, concentrating on his business activities.
  2. However, the appellant claimed that after returning from a business trip in February 2004, six men purportedly linked to the state police, invaded his home and accused him of plotting to assassinate the state BJP leader. He claimed he was blindfolded, abducted, detained, and was accused of being linked to Lashkar-e-Taiba, a terrorist group. The appellant claimed he pleaded his innocence and was released after 17 days. He claimed that after this incident, he continued to be harassed by the police and that every time there was an incident of interest to the police, he was arrested and detained.

THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION

  1. The Tribunal did not accept that the police in Hyderabad, or anywhere else in India, would have had any reason to believe the appellant had any association with Lashkar-e-Taiba or with its agent, Yazdani. Further, the Tribunal noted the appellant had provided no evidence to support his claim about being a former member of the BJP. The Tribunal also found that the appellant ceased giving his time to the AIMIM in 2005, however it did not accept that he had a significant political role with that organisation. Additionally, the appellant’s evidence did not satisfy the Tribunal of his claims that he was harmed because of his desertion of the BJP a decade ago.
  2. The Tribunal found inconsistencies in the evidence provided by the appellant about the harm he claimed he suffered at the hands of the police. In particular, the Tribunal noted that his claims of police harassment were unsupported and that he gave inconsistent evidence about which events caused the police to arrest, or try to arrest him, and when that occurred.
  3. The Tribunal also considered the appellant’s claims that his poor health and stress contributed to the inconsistencies in his evidence. Although the Tribunal accepted that the appellant has had some health and stress issues, it did not accept that they were a significant cause of the inconsistencies in his evidence. Rather, the Tribunal was of the view that those inconsistencies occurred because the events concerned had never occurred.
  4. Having regard to the appellant’s overall evidence regarding his home, travel and work, the Tribunal found that the appellant had lived a stable life in India. The Tribunal concluded that this did not sit with the appellant’s claims about repeated harassment over the years from the Hyderabad police and Hindu extremists. In this respect, the Tribunal noted that the appellant had lived his entire life in Hyderabad at the same residential address. The Tribunal further noted that the appellant left India without difficulty and did not seek protection in Australia during his first visit here between June and August 2008. It also noted that the appellant voluntarily returned to India in August 2008 and returned to his previous address and business activities. This was held to be inconsistent with the actions of a person who feared persecution in India. The Tribunal also took into account the three month delay in applying for a protection visa once the appellant returned to Australia in December 2008. Having regard to the appellant’s claims in their entirety, the Tribunal was not satisfied that they were reliable.
  5. Accordingly, the Tribunal was not satisfied that the appellant faced a real chance of Convention related persecution in India and it was therefore not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention. Thus the Tribunal affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

  1. The appellant filed an application for judicial review in the Federal Magistrates Court, which raised the following grounds and supporting particulars:
    1. The Tribunal has made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the wrong findings that the applicant did not have a significant political role with the AIMIM, applicant’s returned to India and he took long time to apply for protection.

Particulars

i) The Tribunal wrongly found that the applicant did not provide evidence about his membership of the BJP but the applicant told the Tribunal that he is a member of BJP (CB-126-paragraph-107). Role in the party is decided by the party but this can not be a ground to conclude that the applicant did not have a significant role into the party (CB-126-paragraph-108). None of the Applicant’s supporting material about his involvement in the AIMIM is dated prior to the lodgement of his protection visa application. In any event, the evidence is of his involvement purely in the party’s youth wing and purely in social and charitable activities (CB-127-paragraph-109.)

ii) The Tribunal has some problems with the information in the letter submitted by the Applicant to the Department: it says he stop being active with the AIMIM in 2005, but in his own written account to the Department, he said he quit “politics” in 2003 out of fear of persecution and concentrated on his business, which involve interstate travel (CB-127-paragraph-110).

iii) The Applicant’s evidence does not satisfy the Tribunal that the Applicant was being harmed for reasons of his discretion of the BJP a decade ago. The Tribunal without any supporting information wrongly concluded that it finds that the applicant’s past involvements in the social activities of that youth wing is not a significant factor overall (CB-127-paragraph-113). The Tribunal did not refer any information in rejecting the Applicant’s claim that he was made suspect in relation to a number of terrorist activities in Hyderabad (CB-127-paragraph-114).

iv) The Applicant claims that his health and stress have been factors behind some of the inconsistencies in his evidence. The Applicant said that this was why he might have made some incorrect or misleading claims at the delegate’s interview, or claims on that occasion that were inconsistent with the claims he had originally made in writing to the Department (CB-128-paragraph-117).

  1. The Tribunal made a jurisdictional error that the Tribunal did not give an opportunity to the applicant to make comment on adverse opinion which the reason or part of the reason to reject his claim. The information was given to the Department was not given to the Applicant for comment and explanation.

Particulars

i) The Tribunal has some problems with the information in the letter submitted by the Applicant to the Department: it says he stop being active with the AIMIM in 2005, but in his own written account to the Department, he said he quit “politics” in 2003 out of fear of persecution and concentrated on his business, which involve interstate travel (CB-127-paragraph-110).

ii) Overall, the Applicant’s evidence about his domicile, travel and his work, including the handing over of business matters in December 2008 to his uncle, indicates to the Tribunal that he has had a stable life in India. This does not sit with the Applicant’s claims about repeated harassment over the years from the Hyderabad Police and Hindu extremists ((CB-128-paragraph-120).

iii) The information provided by the Applicant to the protection visa application form (CB-129-paragraph-121).

iv) The applicant was not apprehended when he tried to leave India first time (CB-129-paragraph-122).

v) The applicant took long time to apply for protection even though he was now in Australia seeking refuge from Convention-related harassment for the second time (CB-129-paragraph-125).

  1. The Federal Magistrate observed that the arguments raised by ground 1 were not clear and, insofar as they may constitute a request for a merits review, they must be rejected as impermissible. Further, his Honour rejected the appellant’s complaint that the Tribunal had made findings without regard to supporting information, observing that it was clear that the Tribunal’s findings were based on the evidence before it. In relation to the fourth particular of this ground, the Federal Magistrate observed that the Tribunal had properly considered the appellant’s claims that his health problems and stress had provided an explanation for his inconsistent evidence. However, the Federal Magistrate held that no issue arose as to whether the appellant lacked the mental capacities to participate meaningfully at the hearing and that there was no evidence before the Tribunal, or the Court, concerning the appellant’s physical or mental health at the hearing.
  2. Even though the section was not mentioned in the appellant’s application, the Federal Magistrate read ground 2 as a complaint that the Tribunal had breached the requirements of s 424A of the Migration Act 1958 (Cth) (“the Act”). On that basis, after considering each of the appellant’s complaints and the submissions made by counsel for the Minister, the Federal Magistrate rejected this ground.
  3. Specifically, the Federal Magistrate held that it was open to the Tribunal to make findings that the appellant had ceased his involvement with the AIMIM in 2005 and that the Tribunal was entitled to rely on the information it had, without regard to the procedures in ss  424A because of the operation of s 424A(3)(ba).
  4. The Federal Magistrate also rejected the appellant’s complaints made in oral submissions that the Tribunal was “looking for mistakes and not for the truth”, holding that a fair reading of the Tribunal’s decision indicated that it did no more than perform its duty of assessing the appellant’s evidence and providing a statement of reasons explaining why it concluded that the appellant was not a refugee. Furthermore, the Federal Magistrate noted that there was no evidence before the Court that suggested the Tribunal had performed its functions with a mind closed against a proper assessment of the evidence.
  5. Accordingly, the Federal Magistrate dismissed the appellant’s judicial review application for want of jurisdictional error.

THE CONDUCT OF THE PRESENT APPEAL

  1. On 10 November 2010, the appellant filed a notice of appeal in this Court which alleged that:
    1. The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error that the Tribunal did not give to the [appellant] the relevant adverse information which are the reason or part of the reason to reject his claim for protection by the Tribunal. The information collected by the Tribunal was used as adverse information to reject the [appellant’s] claim and the Court was not sure about that information, which was used to reject the [appellant’s] claim. The Court mentioned in paragraph 23 of its judgement that ‘it is unclear whether that finding was used by the Tribunal in any adverse manner’ the applicant claimed that it was used to reject his claim and the Tribunal has obligation under the Migration Act 1958 (the Act) to inform the applicant and the Court did not consider it.
    2. The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error that the Tribunal did not comply with s.424A of the Act and the Tribunal used information which were not excluded under s.4242A (3)(b) and (ba) of the Act. The information was given to the DIAC for a genuine protection application process by the DIAC; it was not give for a review application to the Tribunal under part 7 of the Act. The Court mentioned in its judgement at paragraph 24 that ‘Similarly, the Tribunal’s conclusion about the applicant’s domicile, travel, and work, were in my opinion, based on evidence apparently give by the applicant to the Tribunal in the course of the review proceeding’ is not entirely correct in my situation there are some information was not given for the purpose of review application to the Tribunal.
  2. At the hearing before me on 8 February 2011, the appellant appeared in person unrepresented but assisted by an interpreter. Ms Graycar appeared as counsel for the Minister. Both the appellant and the Minister had earlier filed and served outlines of written submissions.
  3. The appellant’s written outline of submissions raised matters that went beyond the matters outlined in his notice of appeal. In the ordinary course, the appellant would require leave to allow him to take this course. However, since Ms Graycar responded to those matters in detail in her oral submissions, I will proceed to consider those additional matters briefly hereunder.

CONSIDERATION

  1. The first ground of appeal can be disposed of briefly. While the Federal Magistrate did appear to express some doubt as to whether the Tribunal had made some adverse use of the inconsistency in the appellant’s evidence as to the date upon which he had ceased his involvement with the AIMIM (whether in 2003 or 2005), it is quite clear from the next paragraph of the Tribunal’s decision record that the Tribunal did not do that. It specifically said (at [111] of the decision record) that: “for the purposes of this decision, the Tribunal has decided not to treat the discrepancy in dates (2003 or 2005) as significant. The Tribunal will accept that the applicant continued with the AIMIM until 2005.” It is therefore clear, in my view, that the Tribunal did not use that information to reject the appellant’s claim. In any event, even if it had, all the information concerned was provided by the appellant for the purposes of the Tribunal’s review and it clearly fell within the exception expressed in s 424A(3)(b). For these reasons, the appellant’s first ground of appeal does not identify any error on the part of the Federal Magistrate and it must therefore be rejected.
  2. The appellant’s second ground of appeal raises a similar issue to the first, albeit that it involves a different category of information. In this ground of appeal the appellant appears to draw a distinction between information given to the Department for the purposes of his protection application and information given to the Tribunal for the purposes of the review proceedings.
  3. There is no merit in this claim. This is so because the latter information is excepted under s 424A(3)(b) and the former is excepted under s 424A(3)(ba). While the exception in s 424A(3)(ba) does not apply to information that “was provided orally by the applicant to the Department”, there is no suggestion in this ground of appeal, or elsewhere, that any such oral information was provided in this case. For these reasons, the appellant’s second ground of appeal does not disclose any error on the part of the Federal Magistrate and it must therefore be rejected.
  4. The additional matters raised in the appellant’s outline of written submissions were as follows:
    1. The Tribunal did not ask the applicant any comment about his membership with BJP and he did not have a significant political role. The Tribunal did not give any opportunity to comment on the problem the Tribunal had in paragraph 110 of its decision (CB-127), the Tribunal did not send the misleading evidences to the applicant for comment (paragraph -111-CB-127.
    2. The Tribunal also did not ask any explanation from the applicant regarding his cessation with AIMIM in 2005 (paragraph-112-CB-127) and if it is unclear, the applicant will get the benefit. The Tribunal should have asked the applicant why he ceased to giving his time but the Tribunal did not do that which a procedural mistake is made by the Tribunal.
    3. The Tribunal did not understand the applicant’s involvement with the BJP and his activities which had a great influence into the party, the applicant’s later involvement into the AIMIM and following activities were the reason for threat for his life and liberty and the Tribunal did not give the applicant any opportunity to explain why his past involvement is not a significant factor overall. The applicant was not asked to comment on the absent information into the letter of AIMIM (paragraph-115-CB-128).
    4. The Tribunal did not give any opportunity to the applicant to make any comments on that,’ Overall the Applicant’s evidence about his domicile, travel and his work, including the handing over of business matters in December 2008 to his uncle, indicates to the Tribunal that he has had a stable life in India. This does not sit with the Applicant’s claims about repeated harassment over the years from the Hyderabad police and Hindu extremists.’ The Magistrates Court did not consider that the Tribunal made mistakes in this regard.
    5. The observation made by the Tribunal in paragraph 121 of its decision (CB-129) regarding the address during the time the applicant was facing fear and threat for his life was not given to the applicant for any comments and explanation because there are some wrong observations made by the Tribunal which is based on wrong procedure of assessment of information.
    6. The applicant was not given enough opportunity to give explanations by the Tribunal to satisfy the inconsistencies and dissatisfaction of the Tribunal. The Applicant should get a fair treatment from the Tribunal. The Tribunal did not follow the proper procedure of the Migration Act to assess his claim. The Tribunal did not give the applicant to comment on the information of the applicant’s evidences before rejecting his claim.
    7. The Tribunal did not assess the applicant’s claim properly, it did not check the update information about India’s attitude towards Muslim and it also did not check that the Muslims are involved in social activities and politics are not safe in India. The political parties in India always try to blame Muslims and other minorities, profile and significant involvement is not important. The Federal Magistrates Court did not consider those issues.

(Errors in original)

  1. In part, the matters raised in paragraphs 1 and 2 of these submissions raise the use, if any, the Tribunal made of the inconsistencies in the dates the appellant provided as to when he ceased his involvement with the AIMIM. That matter has already been dealt with in relation to ground 1 (see [19] above) and does not require further consideration.
  2. Otherwise I consider the balance of these submissions seek to challenge the Tribunal’s findings of fact and therefore constitute an attempt to seek a merits review of the Tribunal’s decision. This is readily apparent, in my view, from the following examples taken from these submissions:
  3. It is well-established that neither this Court, nor the Federal Magistrates Court, is able to conduct a merits review of the Tribunal’s decision. Furthermore, a wrong finding of fact by the Tribunal does not generally amount to an error of law and nor does unsound reasoning on the Tribunal’s part: see, eg, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20].
  4. For these reasons, I do not consider the appellant’s written submissions have identified any error on the part of the Federal Magistrate.

CONCLUSION

  1. For these reasons, the appellant’s appeal must be dismissed. I will hear the parties on the question of 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 Reeves.

Associate:


Dated: 10 February 2011


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