SZJIB v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-27|Before: McKerracher J

REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate (Lloyd-Jones FM) made on 26 October 2007 (SZJIB v Minister for Immigration & Anor [2007] FMCA 1697) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 August 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as it was then known) to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of India. He arrived in Australia on 14 February 2006. Before the Tribunal he claimed the following: · He belonged to Bhartiya Samajwadi Party (BSP) and began receiving threats from opposition parties demanding he stop his activities. · He went to the police but received no help and only received further serious threats as a result. · That after a few days the police came to his house with a search warrant on the pretext that there were hidden weapons and even though they found nothing arrested the appellant and only later released him on bail. · That the opposition party was putting pressure on him to leave BSP and join them which he resisted. He claimed his son was abducted and returned having suffered physical and psychological abuse. · He took his son to relatives for protection and came to Australia for protection. 3 In response to these assertions the Tribunal put to the appellant that it was concerned about his apparent inability to provide details about many aspects of his claims. The appellant responded to the effect that because he had to work his knowledge of the BSP was limited. The Tribunal made clear to the appellant that the Tribunal needed to further consider the persuasiveness of his explanations. 4 In its findings and reasons the Tribunal concluded that it was not satisfied that the appellant was a member of the BSP. The Tribunal found the appellant's responses to be generally vague and lacking in relevant details and was not persuaded by the appellant's explanations. It was the opinion of the Tribunal that the appellant's response to the question about party ideologies was vague which indicated he lacked an understanding of the BSP. Further, it found the uncertainty of the date he joined raised doubts about the appellant's claims. The Tribunal found the appellant's lack of knowledge about basic matters pertaining to the BSP raised further doubts about the veracity of the claims. 5 In relation to the alleged threatening phone calls the Tribunal recorded it had the impression the appellant was making up names rather than giving genuine responses which raised further doubts about his claims. In relation to the claim of his arrest, the Tribunal noted the vagueness and lack of details about a significant claim such as being arrested. 6 In light of the comments above and in consideration of the evidence as a whole the Tribunal was not satisfied that the appellant was ever a member of the BSP or that he was ever involved in any activities relating to the BSP or that he ever received threatening calls or that the police went to his home with a search warrant or that he was arrested and detained. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 reason (the Convention).

FEDERAL MAGISTRATE'S DECISION 7 On 7 September 2006 the appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. In a further amended application filed on 22 February 2007 the appellant claimed the following grounds: · The Tribunal exceeded its jurisdiction and constructively failed to exercise jurisdiction by breaching s 91R (1) of the Migration Act 1958 (Cth) (the Act). · The Tribunal failed to give proper weight to the appellant's evidence and the persecution he and his family suffered. · The Tribunal breached its obligation under s 424A of the Act. · The Tribunal failed to assess the appellant's claims of 'political opinion'. 8 In relation to the consideration of the real chance of persecution the Federal Magistrate concluded the Tribunal set out the relevant test and went on to consider whether there was a real chance that the appellant would suffer harm amounting to persecution. The Federal Magistrate found the Tribunal did not accept that the alleged threat had been made and accordingly there was no subsequent failure to consider the quality and nature of the threat. The Federal Magistrate concluded that there was no error in the Tribunal disbelieving, rejecting or simply not being satisfied with the appellant's evidence. 9 In relation to the submission by the appellant that the Tribunal failed to assess his claims as they pertained to his political opinions the Federal Magistrate concluded the Tribunal decision was largely directed to that very consideration. However the Tribunal was not satisfied that the appellant was a member or even involved in the activities of BSP and rejected his claims on this basis. This was open to the Tribunal and no jurisdictional error arose. 10 In relation to s 424A of the Act, the Federal Magistrate found the Tribunal was not required to put to an appellant its thought processes or subjective determination for comment. The concept of "information" did not extend to identifying 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. The Federal Magistrate was satisfied the Tribunal was not obliged to issue the appellant with a s 424A letter.

Grounds of Appeal 11 On 15 November 2007 the appellant filed a notice of appeal from the decision of the Federal Magistrate. The actual grounds of appeal are substantially lengthier than summarised in these reasons but, in essence, in relation to the first ground, it is asserted that the finding of the Federal Magistrate at [21] was 'blind acceptance' of the Tribunal's findings that the appellant had not suffered any harm attributable to a Convention reason. The appellant asserts that the Federal Magistrate ought to have found in accordance with his evidence that he had suffered torture. 12 The second ground, again, is substantially more expansive than set out in these reasons but, in essence, the appellant takes issue with the finding of the Federal Magistrate at [34], namely, the conclusion that the Tribunal was not satisfied that the appellant was a member of the BSP. This ground appears (by virtue of its reference to [34] of his Honour's decision to be raising a question of natural justice on compliance with s 424A of the Act. 13 The appellant filed written submissions which deal with the background, the statement of claims made to the Department of Immigration, give a summary of what occurred at the Tribunal hearing, a summary of two particular grounds of error advanced before his Honour in the Court below and short written submissions in relation to the appeal before this Court. 14 In particular in the submissions before this Court, the appellant raised the issue of the Tribunal's alleged failure to address the fact that there would be a risk of significant ill-treatment in the hands of the State authorities if the appellant relocated. The appellant contended that the Tribunal failed to consider this fact and failed to apply the appropriate test referring, in particular, to 'SZYAT v MIMIA (FCA 858/2005)'. 15 This would seem to be a reference to the decision of Wilcox J in SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857. What His honour said in that case at [31]was: Persecution is not established merely by proof that somebody has made a statement (the 'threat') about an intention to kill the person seeking recognition as a refugee. The relevant decision-maker must evaluate the 'threat' and determine whether it amounts to 'serious harm' within the meaning of s.91R(2)(a) of the Act. That evaluation needs to take into account all the surrounding circumstances ... Wilcox J found (at [36]) that in that case the Tribunal had fallen into jurisdictional error in failing to consider the seriousness and likely effect of a threat to kill the appellant. 16 That case had no application to the present circumstances as the Tribunal in this instance found that no threat had been made in the first place. 17 In written submissions, the appellant referred to the alleged failure on the part of the Tribunal to follow the review process acMCKERRACHER J

NEW SOUTH WALES DISTRICT REGISTRY NSD 2267 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: MCKERRACHER J DATE OF ORDER: 27 FEBRUARY 2008

The appeal be dismissed.
The appellant to pay the costs of the first respondent to be fixed at $2,700.

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 2267 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Ground 1 - 'blind acceptance' 20 As far as the first ground is concerned, a 'blind acceptance' by his Honour of the Tribunal's finding could only, in the absence of any evidence or specific assertion of bias, be taken to mean a lack of analysis of the finding of the Tribunal. The relevant finding was crucial to the appellant's argument. It was the Tribunal's ultimate conclusion that he had not suffered harm within the meaning of the Convention. Being a factual finding on the part of the Tribunal (even if it was in error for which there is no support other than the appellant's assertions), that of itself would not be sufficient to constitute jurisdictional error. This ground of appeal, in essence, simply seeks a merits review which is not available to the appellant on this appeal. 21 This ground must be dismissed.

Ground 2 - Natural justice and s 424A of the Act 22 As to the second ground, it may be that the appellant has not understood the process. To appreciate the approach of the Tribunal it is necessary to examine both [33] and [34] below in which his Honour said: 33. Part (b) of the ground in the further amended application claims that the Tribunal failed to issue the applicant with a s.424A notice. Although not clearly particularised, it would appear that the applicant believes that the Tribunal may have relied upon his statement attached to his original protection visa application. An examination of the Court Book indicates that the statement was prepared by the applicant's wife but was not re-submitted with the application for review before the Tribunal. The Tribunal decision reproduces part of the translated statement under the heading "Claims and Evidence". The decision also set out, in considerable detail, the discussion between the applicant and the Tribunal member at the hearing: CB 81-83. In addition, it referred to a brief oral submission by the applicant's adviser and the country information referred to by the Tribunal. 34. The decision also sets out the following paragraph which explains how the Tribunal dealt with the statement and evidence given by the applicant (CB 84): In consideration of the evidence as a whole and for reasons outlined below, the Tribunal is not satisfied that the applicant is a member of the Samajwadi Party. The Tribunal notes that there are some differences in the information contained in the Statement provided in support of the application and the applicant's oral testimony. Given the applicant's evidence that his wife had prepared that document, in reaching its findings, the Tribunal has not relied on any noted inconsistencies. In the circumstances, I am satisfied that the Tribunal was not obliged to issue the applicant with a s 424A letter. 23 As indicated from this extract, the Tribunal has made allowances for inconsistencies which are allowances made in favour of the appellant rather than against him. In other words, to the extent there were inconsistencies which were capable of being attributed to the preparation of the document by the appellant's wife, then the Tribunal did not take into account any such inconsistencies. 24 The appellant appears to consider that the Tribunal has acted adversely to his interests in this regard whereas it is clear that the Tribunal has taken into account his explanation for the inconsistencies and out of an abundance of caution acted in his interests in relation to those inconsistencies in the manner outlined above. 25 It is clear, in my opinion, there was no jurisdictional error either in the decision of the Tribunal or in the decision of the Federal Magistrate.

CONCLUSION 26 The appeal will bedismissed. The appellant is to pay the costs of the first respondent fixed at $2,700. I certify that the preceding twenty- six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Date of Hearing: 26 February 2008

Date of Judgment: 27 February 2008

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