SZKSA v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-28|Before: McKerracher J

REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate (Cameron FM) made on 1 November 2007 (SZKSA & Anor v Minster for Immigration & Anor [2007] FMCA 1834) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 17 April 2007 and handed down on 10 May 2007. 2 On 11 August 2006 the appellants arrived in Australia. They are citizens of India. On 7 September 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 23 October 2006. On 14 November 2006 the appellants applied to the Tribunal for a review of that decision. 3 The appellants are from Ahmedabad. The first appellant is a 48 year old man and the second appellant is his 45 year old wife. 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.

THE TRIBUNAL'S DECISION 4 In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution based on his Hindu religion and particular social group. He claimed that he was a devoted member of the Hindu organisation Vishva Hindu Parishad (VHP). The appellant and his business partner were allegedly on the train in 2002 that was burnt by Muslim extremists, sparking the Hindu-Muslim riots. He claimed that he managed to escape the train but his shop was burnt during the riots and his life was threatened by Muslim fundamentalists. He claimed that the police did not provide adequate protection, as a result the appellant and his wife fled to Australia and he feared he could be killed if he returned to India. 5 On 13 March 2007 the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) inviting comment on certain issues by 5 April 2007. The appellant did not respond to the letter. 6 The Tribunal accepted independent country information that showed the train incident sparked the Hindu-Muslim riots. However the Tribunal did not accept that the appellant was a credible witness, or that he was involved in the train incident or subsequent riots, for the following reasons:

FEDERAL MAGISTRATE'S DECISION 8 On 29 May 2007 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed that the Tribunal breached s 424A of the Act; made a jurisdictional error of law and lacked procedural fairness; and denied the appellant natural justice as it failed to provide further opportunity for the appellant to present further evidence. 9 His Honour found that there was no breach of s 424A of the Act because the information relied upon to make each finding was either evidence given by the appellant which fell within the exception under s 424A(3)(b) of the Act; information raised in the Tribunal's s 424A letter; independent country information which does not raise a s 424A obligation; or an appraisal which was not 'information' under SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. 10 The second ground was not particularised and was found not to be made out. The final ground was dismissed by his Honour because the Tribunal gave the appellant the opportunity to provide it with any further evidence in its invitation to attend the hearing and the appellant did not request any further time to provide such evidence.

GROUNDS OF APPEAL 11 In the notice of appeal filed on 19 November 2007 in this Court, the appellant claimed that the Federal Magistrate erred in failing to find error of law, jurisdictional error, and a lack of procedural fairness arising from the Tribunal's decision, as the Tribunal failed to properly consider the appellant's claims. This appears to be an assertion that the Federal Magistrate erred by failing to apply the law in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 12 The Tribunal was very clear on its adverse credibility finding. There is no scope for this Court to interfere with the particular finding in the circumstances of these appellants and in expressing that view, I will consider the grounds of appeal but they can all be consolidated under these four hearings. 13 A number of the grounds of appeal are directed against the Tribunal rather than the Federal Magistrates Court. However, for the purposes of this appeal the grounds will be considered as alleging a failure on the part of the Court below to identify these as failures of the Tribunal.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2281 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

The appeal be dismissed.
The appellants to pay the costs of the first respondent to be fixed at $2,500.

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

NEW SOUTH WALES DISTRICT REGISTRY NSD 2281 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

his statement to the first respondent was almost identical in wording to the statement made by his business partner in his file and the appellant claimed he had not seen the partner after leaving India yet their street addresses in their protection visa applications were identical, therefore they 'collaborated...in order to manufacture a set of claims';
independent country information showed that the Hindu population was the majority population in Ahmedabad, the VHP had strong links with the ruling Bharatiya Janata Party, much of the violence was committed by Hindus at Muslims and assistance would have been provided by police; and
the four year delay between the riots and the appellant's departure from India. 7 The Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention reason.

Ground 1 - Failure to correctly apply the law 14 This ground was not raised before his Honour. In this matter there were very clear adverse credibility findings against the appellants. Those findings cannot be disturbed by the Court. As observed by O'Loughlin J in Bains v Minister for Immigration and Multicultural Affairs [2001] FCA 403: [17] It is well recognised that the Tribunal must investigate claims for a protection visa with care and, also, with understanding. It is necessary for members who constitute Tribunals to remind themselves constantly that many of those who appear before them are frightened, fragile people in a foreign land, unable to speak the language and unaware of our legal and administrative system. Just as Courts should not be overly zealous in examining the reasoning processes of a Tribunal, so also should a Tribunal exercise great care when assessing the importance, relevance and accuracy of any information that is put before it. Nevertheless, it remains a fact that decisions of a court or a Tribunal about matters of credibility "are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive": Re Refugee Review Tribunal; ex Parte Mansour Aala (2000) 176 ALR 219 at 221 per Gleeson CJ. If a Tribunal has reasonably come to the conclusion that it is unable to accept an applicant's evidence and its reasoning process cannot be faulted, there is no room for this Court to intervene even though it considers that it might have come to a contrary conclusion if it had been the original decision-maker. This is a subject which has often been addressed by the courts. In Randharwa (sic) v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, Beaumont J made these comments: "Proof of persecution in the context of an application for refugee status is a matter of some complexity. As A Grahl-Madsen has noted (The Status of Refugees in International Law, pp 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf Gaudron J in Chan at CLR 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting State "should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with". This should not, however, lead to "an uncritical acceptance of any and all allegations made by suppliants." 15 This ground therefore must fail.

Ground 2 - Failure to properly consider claims 16 This ground also was not raised in the Court below. It has not been particularised in any helpful sense either in the notice of appeal or otherwise by affidavit or submissions. It is clear that the Tribunal made strong adverse credibility findings against the appellants. The nature of those findings subsumed matters of specific detail and accordingly it was unnecessary for the Tribunal to descend to dealing with each particular matter raised by the evidence. Its decision to uphold the decision of the first respondent's delegate would not have been affected had it adverted to any particular evidence. (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]). 17 I am not satisfied that any error has been demonstrated and it follows that this ground of appeal being without merit must be dismissed.

Ground 3 - Procedure fairness and natural justice 18 This ground of appeal was advanced before his Honour below. In relation to that his Honour said at [11]-[12]: 11. The findings of the Tribunal which led to its decision to affirm the decision of the delegate related to three matters namely: (a) the near identity of the terms of the statement provided by the applicant with the statement provided by another applicant before the Tribunal whom the applicant claimed was his business partner and who appeared to live in the same block of flats in Griffith as did the applicant; (b) the availability of state protection; and (c) the four year delay between the sectarian riots following the Godhra train incident and the applicant's departure from India. 12. The information relied upon to reach these findings was: a) in general, the evidence given by the applicant at the Tribunal hearing. Such information falls within the exception found in s.424A(3)(b) and thus no s.424A(1) obligations arose in relation to it; b) in relation to the first issue referred to at [11] this was information which was raised by the Tribunal in its s.424A(1) notice to the applicant dated 13 March 2007 which is reproduced at CB 74 and CB 75. Thus any s.424A obligations which the Tribunal had in relation to that information were discharged by the service of that notice; c) as to the second issue, this depended significantly on independent country information and thus there was no obligation to serve a s.424A(1) notice in relation to it; and d) in relation to the third issue the information in question is in reality a conclusion, a determination or an appraisal which is not "information" as that term is understood in the context of s.424A: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. 19 I agree with his Honour's conclusion that no jurisdictional error was demonstrated. This ground must fail.

Ground 4 - The wrong test was applied 20 This ground was not raised in the Court below. It is suggested that the appellants were required to meet an unduly high standard of proof. I am unable to discern any part of the Tribunal's reasons which would reveal an error of the nature supported by the ground of appeal. No specific issue was identified as constituting an example of the alleged error. That being so this ground of appeal must fail.

CONCLUSION 21 The appeal should be dismissed and the appellants are to pay the costs of the first respondent fixed at $2,500.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

The First Appellant appeared in person and represented the Second Appellant

Counsel for the First Respondent: JP Knackstredt

Solicitor for the First Respondent: Clayton Utz

Date of Hearing: 27 February 2008

Date of Judgment: 28 February 2008

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