SZLMB v Minister for Immigration & Citizenship

THE TRIBUNAL DECISION 4 On 13 September 2007, the Tribunal affirmed the decision of the first respondent not to grant a protection visa. The Tribunal did not accept that the appellant was threatened by the Maoists, that the appellant was physically attacked by the Maoists twice in 2004, that the appellant had to leave her home village because of fear of harm from the Maoists or that the appellant feared harm from the Maoists in Kathmandu. And because the Tribunal did not accept the appellant's claims of past harm at the hands of Maoists, the Tribunal did not accept that the Maoists would harm her in the future.

THE COURT BELOW 5 On 10 October 2007, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. 6 The appellant was granted leave to rely upon an amended application which was filed on 27 May 2008. The appellant pursued only ground 3 of that application which was in the following terms: The [Tribunal] made jurisdictional error by failing to give consideration to medical certificates submitted by the [appellant] save as to state: a) the documents in themselves did not establish that the [appellant] was attacked by Maoists; and b) the Tribunal had concerns about other aspects of the [appellant's] evidence. 7 That application was dismissed on 30 May 2008. Before the Federal Magistrate, the appellant submitted that the Tribunal was bound to consider the medical certificates as corroborative of the appellant's claims that she had been attacked by Maoists in circumstances where the appellant's credibility had not been poisoned beyond redemption: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59and WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27] and [32]. 8 Four passages in her Honour's reasons for decision are worth restating. First, her honour found (at [35]) that "a fair reading of the Tribunal's decision makes clear that the Tribunal comprehensively rejected the [appellant's] claims of persecution by Maoists because she was a supporter of the Nepali Congress Party or because she spoke out against Maoists, or that she was ever attacked by Maoists." Secondly, her Honour concluded that these findings were open to the Tribunal on the evidence and material before it and for which it provided reasons, including adverse credibility findings (at [36]). 9 Thirdly, her Honour recorded, as was the fact, that it was in the context of those findings, that the Tribunal not only had regard to the medical certificates provided by the appellant in support of her claims but also that the Tribunal was not satisfied that the certificates in themselves established the appellant had been attacked by Maoists. 10 And finally, her Honour concluded (at [38] and [39]): In the circumstances, this was not a matter where "there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims" (WAIJ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 74 at [32]). In the circumstances, even if the medical certificates were capable of supporting the Applicant's claims of attack by Maoists, the Tribunal's findings of its lack of satisfaction about the [appellant's] claims are findings of untruthfulness of the [appellant's] evidence.

APPLICATION TO THIS COURT 11 The appellant now seeks prerogative relief of the kind issued in the exercise of the Federal Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172 at [23]. Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the Federal Magistrates Court and make such judgment or order as, in all of the circumstances, is appropriate, including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 12 The Notice of Appeal filed in this Court on 19 June 2008 specifies two grounds: 1. Her Honour erred by finding that the decision of the [Tribunal] was not affected by jurisdictional error by reason of its failure to have regard to the medical certificates submitted by the Appellant in assessing her credibility and/or her claims. 2. Her Honour erred by adopting a pedantic and/or literalist view of the probative and/or corroborative value of the medical certificates submitted by the Appellant. 13 The appellant's complaints are twofold - her Honour erred in failing to determine that the Tribunal itself failed to have regard to the medical certificates submitted by the appellant in assessing her credibility and/or her claims and that in reviewing the Tribunal's reasons for decision, her Honour adopted "a pedantic and/or literalist view of the probative and/or corroborative value of the medical certificates submitted by the Appellant". These complaints are without substance. 14 First, her Honour referred to (and, as will be seen, properly applied) the appropriate standard for reviewing the Tribunal's reasons for decision. Her Honour adopted a fair reading of the Tribunal's decision, not the allegedly pedantic approach contended for by the appellant: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271-272]. 15 Secondly, her Honour found, that upon a fair reading of the Tribunal's decision it was clear that the Tribunal understood the appellant's claims; explored those claims with her at a hearing; put matters about which the Tribunal was concerned to the appellant arising from her evidence and noted her responses; and had regard to all of the material provided by the appellant in support of her claims, including the medical certificates. As the Tribunal said: The Tribunal has had regard to the medical certificates provided by the Tribunal (sic) but is not satisfied that these certificates in themselves, establish that the [appellant] was attacked by Maoists as she claims. … Given the Tribunal's concerns about other aspects of the [appellant's] evidence, the Tribunal is not satisfied that the medical certificates and her brother-in-law's evidence establishes that the [appellant] was harmed by Maoists in the past or that there is real chance that the [appellant] could be persecuted by Maoists in the reasonably foreseeable future if she returns to Nepal. (Emphasis added). 16 As noted by her Honour, that approach of the Tribunal was consistent with the authorities referred to above (see [8] and [11]). Moreover, as the first respondent submitted, the Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out (Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348) and nor is the Tribunal required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). The appellant's contention that the Tribunal "ignore[d] a potent piece of evidence" (namely the medical certificates) is without foundation factually and legally. 17 Put simply, the appellant faced an insurmountable hurdle ‑ the Tribunal was ultimately not satisfied about the appellant's evidence arising from her lack of knowledge about her alleged political activities, the 'limited details' of her claims, and her inconsistent evidence. It is the role of the Tribunal, not the Court, to make credibility findings: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. 18 No appellable error can be found in the approach taken by the Federal Magistrate.

CONCLUSION 19 I would dismiss the appeal and order the appellant to pay the first respondent's costs of the appeal fixed in the sum of $1,500.00. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 11 August 2008 Counsel for the Appellant: Mr JR Young

Solicitor for the Appellant: Simon Diab & Associates