SZOMS v Minister for Immigration and Citizenship [2011] FCA 90 (14 February 2011)

Last Updated: 15 February 2011

FEDERAL COURT OF AUSTRALIA

SZOMS v Minister for Immigration and Citizenship [2011] FCA 90

Citation:		SZOMS v Minister for Immigration and Citizenship [2011] FCA 90
Appeal from:		SZOMS v Minister for Immigration & Anor [2010] FMCA 778
Parties:		SZOMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1370 of 2010
Judge:		MCKERRACHER J
Date of judgment:		14 February 2011
Date of hearing:	11 February 2010
Place:	Sydney (via video-link to Perth)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	G Johnson
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1370 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MCKERRACHER J
DATE OF ORDER:	14 FEBRUARY 2011
WHERE MADE:	SYDNEY (VIA VIDEO-LINK TO PERTH)

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the costs of the first respondent, to be taxed if not agreed.
   

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 1370 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MCKERRACHER J
DATE:	14 FEBRUARY 2011
PLACE:	SYDNEY (VIA VIDEO-LINK TO PERTH)

REASONS FOR JUDGMENT

1. The appellant, a citizen of India, arrived in Australia on 19 August 2009 on a business visa. On 25 September 2009, he lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). He was also granted a bridging visa whilst his application was processed. A delegate of the first respondent (the Minister) refused the application on 28 January 2010. On 9 March 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision and the appellant sought review with the Federal Magistrates Court.
2. This is an appeal from the judgment of a Federal Magistrate delivered on 28 September 2010 (SZOMS v Minister for Immigration & Anor [2010] FMCA 778). His Honour dismissed the application for judicial review of the decision of the Tribunal handed down on 31 May 2010.

APPELLANT’S CLAIMS

3. The appellant claims to have a well-founded fear of persecution due to his political opinion. He claims that he was a moderate Muslim and was an Indian Youth Congress supporter (Congress). His mother was a ‘Charpanj [council member] of Sudrasan til 2004’. She lost her position in 2004 to Mr Bagirth Yadav, the leader of the Communist Party of India (Marxist) (CPI-M). The appellant claimed that he was ‘obsessed’ with the Congress party and was heavily involved in its campaign during the 2004 elections. As a result, he claims that he was ‘mercilessly’ beaten in front of his family, intimidated and threatened by Mr B Yadav and ‘Jat thugs’. The appellant claimed to have been assaulted once in 2004 and once in 2008.
4. On 13 October 2008 the appellant claimed that Muslims had been blamed for the murder of a local ‘Jat’ which caused a communal riot. The appellant claimed that Mr B Yadav took advantage of the situation and attacked Muslims and his family. He claimed that his house had been ransacked and was advised to leave the country as soon as possible.
5. The appellant claimed that his family had suffered since the Babri Masjid dispute in 1991. He also claimed that the Indian Government was dominated by Hindu radical parties which encouraged violence against Muslims and discriminatory policies. Muslims were at risk of being detained, interrogated and tortured. He claimed that he was unable to live elsewhere in India as he believed that Muslims were always viewed with suspicion and would be asked why he had moved to their area.
6. The appellant claimed that with the continued violence and attacks by Hindu radicals in India, he feared for his life and the safety of his family.

BEFORE THE TRIBUNAL

7. The Tribunal noted that a liberal attitude on the part of the decision-maker is called for in assessing refugee status. However, the Tribunal is not required to accept uncritically any or all allegations made by the applicant.
8. The Tribunal accepted that the appellant was a national of India, and was an active supporter and member of the Congress party in his local area. It also accepted that his mother had served ‘as a charpanji from 2000 to 2004’ and provided her with assistance during this time.
9. However, the Tribunal found the appellant’s evidence to be inconsistent. Particularly in relation to the evidence provided to the Department and the Tribunal about the events of October 2008, which was central to the appellant’s claims of fear of persecution. The Tribunal found that the inconsistencies demonstrated a propensity to tailor evidence in a manner to support his claims. It considered the appellant not to be a reliable or credible witness. Consequently, the Tribunal did not accept that the appellant was targeted, attacked, harassed or assaulted by Mr B Yadav or by anyone else. It did not accept that the appellant’s house was attacked or ransacked or that he was harmed by anyone in his village for the reason of his political opinion as claimed. Also, the Tribunal did not accept that Mr B Yadav had incited violence in his village against Muslims.
10. The Tribunal accepted that the imbalance between the number of Muslims and Hindus, combined with other events, could give rise to communal conflicts and riots in the appellant’s locality. It also accepted that communal riots in October 2008 could lead to communal riots targeting Muslims. However, there was no credible information before it to suggest that every Muslim in India was at risk of harm simply because of his or her religion. It stated that although the demographic imbalance and prospect of communal violence may be of concern, it would be viable, reasonable and practical for the appellant to relocate internally.
11. The Tribunal was not satisfied that the appellant faced a real chance of serious harm in India for reasons of his political opinion, religion or membership or any other Convention reason.

THE FEDERAL MAGISTRATE’S DECISION

12. Before the Federal Magistrate the appellant claimed that:
    1. The Tribunal did not put the inconsistencies to the appellant for comment to the extent that it breaches s 424A of the Migration Act 1958 (Cth) (the Act).
    2. The Tribunal made a relocation finding without stating how (or why) the appellant could relocate within India.
13. The learned Federal Magistrate noted that the Court could not rehear the application but was required to determine whether the Tribunal’s decision had been affected by jurisdictional error.
14. Section 424A of the Act requires the Tribunal to notify the appellant of inconsistencies. His Honour noted that the obligation was limited to material of a factual nature. Regardless, the Tribunal had made an oral notification at the hearing to the appellant of the inconsistencies. This notification satisfied the obligation and the Tribunal was not required to request further comment in writing pursuant to s 424A(2A) of the Act. There was no jurisdictional error.
15. As to ground 2, the learned Federal Magistrate noted that the appellant did not articulate a claim or fear of persecution based on his religion. His Honour held that the Tribunal had correctly considered the question of whether it was reasonable and practicable for the appellant to relocate within India and addressed the appellant’s concerns in its discussion on relocation. His Honour noted that the appellant had claimed that he could not relocate because it was very difficult and as a Muslim and the people’s anti-Muslim mentality, he would not be able to find rental accommodation. His Honour found that the appellant’s reference to religion and allegations that Mr B Yadav took opportunistic advantage of it was irrelevant to the Tribunal’s decision and to the review proceedings.
16. The learned Federal Magistrate found that there was no jurisdictional error and dismissed the application.

GROUNDS OF APPEAL

17. The grounds of appeal from the decision of the Federal Magistrates Court are these:

1. Tribunal breached s.424A of the Migration Act 1958.
2. Tribunal did not explain why the appellant could relocate within India.
3. Tribunal did not call me for second hearing.

18. Although the grounds of appeal are directed to the Tribunal, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal.
19. At the hearing before me the appellant stressed, despite repeated invitation to expand as he saw fit, that he wished to rely solely on the materials in the papers that he had presented including the grounds of appeal.

ANALYSIS

20. As to ground 1, the learned Federal Magistrate dealt with this claim in the Court below. Section 424A and s 424AA of the Act provide:

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.

424AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

21. The learned Federal Magistrate noted (at [13]-[14]) that the Tribunal complied with s 424AA of the Act when it discussed with the appellant information it considered may be the reason for affirming the decision under review. Therefore, by operation of s 424A(2), the Tribunal was not obliged to comply with s 424A. No error can be found in the decision of the Federal Magistrate in this regard.
22. In any event, the adverse ‘information’ that the Tribunal purported to put to the appellant during its hearing with the appellant came within a category found by the Full Court of this Court to be outside the reach of s 424A(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 (at [24]), Finn and Stone JJ found that ‘information’ for the purposes of s 424A(1):

does not encompass the Tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.

23. The Full Court’s reasoning in VAF was approved by a majority of the High Court of Australia in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (at [18]). The High Court held (at [17]) that ‘information’ in this context must ‘contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations’.
24. Ground 2 was also dealt with by the learned Federal Magistrate in the Court below. In this respect, his Honour stated (at [17]):

...the Tribunal turned its mind to the correct question, namely, whether it was reasonable and practicable for the applicant to relocate within India. During the hearing the applicant had said that he could not relocate because moving to a different area was very difficult and as a Muslim he would not be able to find accommodation because of people’s anti-Muslim mentality. He also said that he would not be able to continue his political activities in a place where no one knew him. The Tribunal addressed these concerns in its discussion of relocation in para.67 of its decision. That is to say, it said how and why it was reasonable and practicable for the applicant to relocate. By doing so, the Tribunal considered the question of relocation in the correct way: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at 438-439 [123] - [124].

25. No error can be found in the decision of the learned Federal Magistrate in this regard.
26. Ground 3 was not raised in the Court below. It is unclear on what basis the appellant claims that he should have been entitled to a second hearing. In the absence of further particulars, this ground is not made out.
27. On the face of the Tribunal’s decision record, there is no suggestion that the appellant ever sought a further opportunity to appear before the Tribunal. In any event, there is no statutory, or general, requirement for the Tribunal to invite an applicant before it to appear at additional hearings. The appellant was invited to attend a hearing in accordance with s 425, and did so attend. The ‘issues arising in relation to the decision under review’ were comprehensively dealt with during the Tribunal’s hearing with the appellant, and as no additional issues arose on the review thereafter, the appellant was not entitled to be invited to appear at a further hearing: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (at [103]) per Besanko J.
28. No error can be found in the decision of the learned Federal Magistrate in this regard. Nor can any other jurisdictional error be found in the Tribunal’s decision. The grounds of appeal are not made out.

CONCLUSION

29. The appeal is dismissed. The appellant is to pay the costs of the first respondent, to be taxed if not agreed.
    

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated: 14 February 2011