SZBAB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (Ex tempore - revised) HILL J 1 The appellant appeals against a decision of a federal magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had confirmed a decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refusing his application for a protection visa. 2 The Magistrate's decision was given on 10 December 2004. The notice of appeal was not filed within due time and in consequence, the appellant sought an extension of time within which to file and serve a notice of appeal. The extension of time was granted on the basis that the Court was able to, in any event, hear the appeal within a short period of time and having regard to the fact that the attempted filing of a notice of appeal was only a few days late. 3 When the matter came before me at a directions hearing on 16 March 2005, I ordered that the appellant file a notice of appeal by 18 April 2005. He had filed what, in form at least, was a draft notice of appeal with his application for an extension of time to file and serve a notice of appeal. The appellant did not, however, comply with the order made at the directions hearing. Indeed, when asked about it, he suggested that he would not be filing such a notice of appeal because he did not know how, and had no legal knowledge. 4 The appellant, a citizen of India, arrived in Australia on 29 July 1996 and has been here ever since, that is to say, for a period of almost nine years. He came here on a student visa and has had a number of visas since, coinciding with having changed courses of study. There is some suggestion that on a number of occasions he did not meet the course requirements. Whether because of lack of academic progress or other reasons. 5 Ultimately, the Minister refused to issue him further student visas. At some stage, he was in detention. When interviewed in April 2002, the appellant's brother apparently said, presumably with authority, that if an application then before the Minister requesting ministerial intervention were unsuccessful, the appellant would have to make departure arrangements. 6 On 27 April 2002, after steps were taken to remove the appellant from Australia, he indicated his intention to seek a protection visa and lodged an application for such a visa in May 2002. This secured his release from detention. Ultimately, a delegate of the respondent Minister refused the grant of a protection visa and the appellant applied to the Tribunal for a review of the delegate's decision. 7 For present purposes, it suffices here to set out the précis of the appellant's claims as recorded in the Tribunal's reasons for decision. That précis was read to the appellant and he apparently agreed it was a fair summary of his situation and claims, subject to a qualification that his study difficulties in Australia arose because of external factors. The précis is as follows: "You are an Indian Muslim from Patna in Bihar State. While you were a student, you became involved in Muslim political organisations and were involved in demonstrations against the demolition of the Babri Mosque. You were injured in some of the clashes associated with those demonstrations and a friend was killed. There had been an earlier incident when another friend, a Hindu, was bashed for associating with you. Religious tensions resulted in your graduation being delayed. After completing your college education, you found it hard to get work because of your religion. You were able to get contract work for three periods totalling 12 months at a company in 1995 and 1996. There was an incident when you were among a group of Muslims harassed by Hindus on a train. Because your name was on a list of people wanted by a Hindu group, you left Patna and went to live elsewhere. However, because you encountered religious tensions wherever you went, you returned to Patna. Your father suggested you leave India and you came to Australia. You lived with your brother and studied here. Because of your fears you were unwilling to return to India even when your father was dying. Hindu extremists continue to make threats against you to your mother. You encountered various difficulties with your studies in Australia and had to change courses on a few occasions. Eventually you were detained in February 2002 for over-staying your visa. You applied for protection in May of 2002." 8 The appellant's claim was based upon his membership of two Muslim political groups, the Muslim League and Students Islamic Movement of India ("SIMI"). He claimed to have been targeted by rival Hindu groups and later by SIMI after he left the group and declined to rejoin it. He also claims to fear persecution by the Indian government because of his past association with SIMI. 9 The Tribunal in its reasons noted numerous contradictions in matters put forward by the appellant. They were, the Tribunal observed, too numerous for it to ignore. Not only was there the difficulty that the appellant had been in Australia for years as a student before contemplating the making of a claim for a protection visa but when he did so, he made no reference at all to the matter of his alleged membership of SIMI, which later became a key feature of his claims in a second statement. As the Tribunal observed, it might also have been expected that the second statement would have mentioned his membership of the Muslim League, a matter which apparently arose later. 10 It is not necessary here to set out in detail the various contradictions and inconsistencies which the Tribunal noted. It suffices to say that, upon a consideration of the evidence, the Tribunal was not satisfied that the appellant had a well founded fear of persecution in India for a "reason" as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees. In fact, the Tribunal observed that it was not satisfied that the appellant was describing events which actually happened to him and that the Tribunal was of the opinion that he had fabricated his claims drawing on published accounts of inter-communal violence in India. 11 The appellant then sought judicial review from the Federal Magistrates Court. His application for judicial review contained no particulars suggesting jurisdictional error but rather, raised matters of fact which would be relevant to a merits review. When the application came for hearing before the Magistrate, the Magistrate asked the appellant to tell, in his own words, why he believed the Tribunal had fallen into jurisdictional error. The appellant's response was that the Tribunal had not made the right decision on his claims which he, the appellant, had submitted to it. 12 The learned Magistrate, after referring to some passages from the judgment of Kirby J in Dranichnikov v The Minister of Immigration (2003) 197 ALR 389 at [78] and from a decision of a Full Court of this Court in SBBA v Minister of Immigration [2003] FCAFC 90, said: "If absolutely no allegation of jurisdictional error is made either in the application, or in any submissions by the applicant then it is not for the court to try and invent one for him. This Court has read the entire decision of the Tribunal and had it come to the view that there was anything within it that caused it concern it would have suggested to the applicant that he seeks pro bono assistance so that the Court was not required to argue on the applicant's behalf. But it has found nothing and neither has the applicant." 13 The learned Magistrate accordingly dismissed the application with costs. 14 Before me, when it became clear that the appellant had not filed a notice of appeal, I asked the appellant to indicate in his own words what grounds of appeal there were. The appellant said words to the following effect: "If I returned to my home country there is a fear of persecution but there is no government in the state. The state is ruled by a governor so we don't have a ruling party in the state. If a ruling party comes there in the future I might be persecuted. The political situation there is worse at the present. The circumstances have changed (for the worse) in the last two months." 15 I understand that the appellant is not a lawyer. He is not represented before me. He claimed never to have had legal representation. I pointed out to him that the file disclosed that he had been allocated a lawyer under the Court scheme and that the file contained a bill from the lawyer for legal advice. He said that he had been to see the lawyer on some number of occasions but the lawyer had not been present and had not returned his calls. 16 It is, of course, not really relevant whether the appellant did at one stage have legal advice as the bill sent to the Court indicates or whether, as he says, no such advice was received. The relevant matter is that the appellant has now twice brought legal proceedings, once in the Federal Magistrates Court and later by way of appeal in this Court, with no idea at all why the proceedings he has commenced should be brought, save, no doubt, that he believes that the decision of the Tribunal was wrong. 17 Given the length of time that the appellant has been in this country, it would be easy to draw the conclusion that both the proceedings in the Federal Magistrates Court and the appeal in this Court have been brought so as to avoid being removed from the country but without any real consideration of the legal merits. I have, like the Magistrate, read the decision of the Tribunal. There is nothing on the face of the Tribunal's decision which suggests jurisdictional error on the part of the Tribunal. 18 For reasons which the Tribunal in length traverses, the Tribunal did not believe the appellant. In fact, the Tribunal found that the appellant had fabricated the claims he made. The appellant has not demonstrated, in any way, any error on the part of the Magistrate. Indeed, it is clear that the decision reached by the Magistrate was correct. In the circumstances, I would dismiss the appeal and order the appellant to pay the Minister's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.