SZKTO v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 This appeal is from a judgment of the Federal Magistrates Court of Australia ('the FMCA') (SZKTO v Minister for Immigration and Citizenship & Anor [2007] FMCA 1599) which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the RRT') adverse to the appellant. 2 In order to succeed before the FMCA it was necessary for the appellant to show that the RRT had made a jurisdictional error. The grounds of the application for judicial review stated: '1. I have a genuine fear that I will be beaten or may be killed if I return back to India. 2. My beating and torture will take place because of my political thinking and my political alliance with an established political party which is not in power now. 3. I have been beaten and tortured and my business closed when I was in India and my fear is well founded.' 3 These grounds do not raise any jurisdictional issue. They concern, at best, the merits of the decision of the RRT. The judgment of the FMCA made it clear that the appellant did not advance any material, whether by way of evidence or submissions either before or at the hearing before the FMCA to suggest any jurisdictional error. The Federal Magistrate was not able, independently, to identify any jurisdictional error. It was therefore inevitable that the application for judicial review would be dismissed. 4 The grounds of appeal to this Court state: '1. His Honour erred in refusing relief and considering the matter on the basis of effective state Protection without proper consideration of all circumstances of the Appellants claim and deciding that he respondent Minister's objection ought to be held. The Tribunal failed to enquire if the state protection was meaningful in respect of Appellant. 2. His Honour should have found that the Tribunal erred in apply the law and order/or the test Well founded fear: (a) The Tribunal erred in adopting an unduly harsh approach to the Well-Founded fear (b) The Tribunal is required failed to asses the harm from the perspective of the Persecutor instead assessing the harm from the perspective of the putative persecute. Particulars: The Tribunal identified wrong issue, asked itself wrong questions; failed to consider relevant material and relied on irrelevant material.' 5 Doing the best I can with that confusing mix of different legal concepts I can discern no articulated statement identifying any error in the judgment of the FMCA. An appeal to this Court is given to enable the correction of error. It is not simply an opportunity to re-challenge decisions of the RRT on different grounds. For this reason alone the appeal is liable to be dismissed. However, the appellant is self-represented and for that reason, and also to examine whether some hitherto undetected jurisdictional error has been committed which the interests of justice require to be identified, it is appropriate to look at the appellant's circumstances more closely. It is relevant to note, however, that while the appellant was self-represented before the FMCA and this Court he used the services of a migration agent before the RRT. 6 The appellant entered Australia on 24 May 2006 and on 16 June 2006 lodged an application for a protection (Class XA) visa. His claim was based centrally upon the assertion that, as a member of the BJP (the Bharatiya Janta Party) in India he feared persecution from members of the ruling Congress Party in his home state of Haryana. On 7 July 2006 a delegate of the Minister for Immigration and Citizenship ('the Minister') refused the appellant's application for a protection visa because he was not satisfied that membership of the BJP exposed the appellant to persecution or that he could not, if he did not wish to return to Haryana, relocate elsewhere in India. 7 On 28 July 2006 the appellant sought a review of the delegate's decision by the RRT. The RRT held an oral hearing on 25 September 2006 to examine the appellant's claims in more detail. On 29 September 2006 the RRT wrote to the appellant seeking his comments on some matters arising from his statements to the RRT at the oral hearing on 25 September 2006. The appellant then appointed a migration agent to represent him. Correspondence, including further requests for information, and responses by the migration agent, ensued over the following months. A number of extensions of time in which to provide responses and additional material were sought and granted. In addition, the migration agent was, pursuant to his request, provided a copy of the RRT file. 8 On 22 May 2007 the RRT handed down its decision. It affirmed the decision of the delegate not to grant a protection visa. The RRT decision set out in a comprehensive way the claims and assertions made by the appellant in his visa applicant and at the oral hearing and those made by his representative subsequently. There appears no basis to suggest that he RRT misunderstood the claims made by the appellant or on his behalf. 9 The RRT did not find the appellant to be reliable. It referred to one issue in the following terms: 'In his visa application form dated 13 June 2006, the visa applicant stated as follows: I am Hindu. My father and whole family is supporter of the Bharatiya Janta Party (BJP). My brother XX is very active member of the BJP. At hearing, however, he told the Tribunal that whilst his brother, XX, had been a long-standing member of the BJP, he had joined the Congress Party in July or August 2005.' Of another matter it said: 'The applicant claimed that on 2 February 2005, 10 Goondas hired by the Congress Party arrived at the applicant's home to threaten the applicant and his brother, telling them to leave or face the consequences. The applicant's evidence was general and he told the Tribunal that he was unable to identify his attackers. After the election on 3 February 2005, which was won by the Congress Party, the applicant claimed that about fifty members of the Congress Party came to his house threatening to kill the applicant and his family. The Tribunal finds it implausible that fifty members of the Congress Party would take the time to visit the applicant's house given that they had, that very night, just won the election. The Tribunal finds the evidence provided by the applicant about this incident and the alleged threats by the Goondas to be vague and lacking in details. The Tribunal is of the view that neither of these incidents occurred.' 10 The appellant had claimed in his visa application that after the election in February, 2005 he had closed his business and left India to save his life. He went to Malaysia, Thailand and China and briefly to Hong Kong and then returned to India. He later lived for six months in Delhi. However, his representative asserted that he had not sought asylum in any of the countries he visited because it was only after his return to India that he came to fear for his life. This assertion struck directly at the appellant's reliance on events in February 2005. 11 For a number of reasons, which it explained, the RRT concluded that the appellant's claims lacked veracity and should not be accepted. These were judgments for the RRT to make. They are not matters about which the FMCA or this Court can make effective findings. As earlier explained, the appellant thereafter made an application for judicial review in the FMCA (on 13 June 2007) and filed the present appeal in this Court (on 27 September 2007). 12 In accordance with directions made by a Registrar the appellant filed a written submission. It contained a mixture of complaints about findings made by the RRT, coupled with assertions about the factual reliability of claims rejected by the RRT. It asserted that the RRT misunderstood the applicant's case and did not assess it objectively. The appellant also complained of difficulties with the interpreter. The only suggestion of error by the FMCA was that it should have found the existence of jurisdictional error by the RRT. 13 At the hearing of the appeal the appellant said again that he had not fully understood the interpreter during the hearing before the RRT. He claimed to have made this complaint at the RRT hearing. The RRT however recorded: 'The applicant agreed that he had understood the interpreter fully. When the Tribunal raised differences between the evidence given at hearing and provided on the visa application form, the applicant said that this may have occurred because he had been speaking quickly in the hearing.' and: 'The Tribunal does not agree that the inconsistencies between the visa application form and the Tribunal hearing can be explained, as the applicant attempted to do, by his rapid speech, particularly in light of his agreement at the Tribunal hearing that he understood the interpreter fully.' 14 The appellant told me that he had also complained about the quality of interpretation to the FMCA. The judgment under appeal records: 'The applicant had no arguments to show jurisdictional error, other than repeating a claim that he had not properly understood the interpreter at the Tribunal hearing. However no evidence to establish that contention has been presented to the Court, and it is inconsistent with the Tribunal's description of the hearing.' 15 There is no other basis for the suggestion of inadequate interpretation than the assertion by the appellant. Much more would be required than a bare assertion of the kind made by the appellant in this case (see, for example, STPB v Minister for Immigration and Indigenous Affairs [2004] FCA 818 and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 which each involved detailed examination of not only the standard of interpretation but also whether any jurisdictional error was exposed). Moreover, the allegation is an insufficient explanation of the discrepancies identified by the RRT. In the circumstances this complaint does not identify any jurisdictional error. 16 The only other oral contribution the appellant sought to make was to suggest he produce a series of newspaper clippings in an attempt to controvert the view taken by the RRT of some factual matters. I declined to receive that material. If relevant it should have been produced to the RRT. As I earlier recorded, the appellant had a number of opportunities to provide material to the RRT. An appeal to this Court exists to provide an opportunity for the correction of errors made by the FMCA. It does not exist to permit the further canvassing of matters entrusted to the RRT. This Court does not have the jurisdiction to conduct a merits review or revisit matters not disclosing jurisdictional error by the RRT. 17 In the end, therefore, the appellant's oral submissions did not materially add to his written case. Upon any view of the grounds of appeal in this Court and the written submissions they invite conclusions about the merits of the RRT decision. Although sprinkled with suggestions of jurisdictional, or other legal, error those contentions simply mask the real position. I can see no basis for any intervention by the FMCA or this Court. 18 The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.