SZLYI v Minister for Immigration and Citizenship

Federal Court of Australia|2008-11-18|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Federal Magistrate Smith of 11 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 15 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 25 June 2007. On 31 July 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 27 August 2007. On 17 September 2007 the appellant applied to the Tribunal for a review of that decision. 3 Before the Tribunal the appellant claimed to have written a number of articles on the Gujarat riots during 2002 which were in favour of Muslims and exposed the involvement of politicians and others in the violence. The appellant claimed that he was subjected to threats of abduction and harm and intimidation from the Hindu community due to the inflammatory nature of the articles. He stated that he suffered physical and mental abuse and on one occasion his house was ransacked and he was beaten. He claimed that he was denied protection from the police and thereafter he travelled to Dubai where he remained for one year before returning to India in the hope that things had changed. He stated that he was subjected to further threats following the publication of an article about a bomb blast in a Mosque and without further assistance of his family, he was forced to leave the country.

BEFORE THE TRIBUNAL 4 The Tribunal invited the appellant to give oral evidence and present arguments at a hearing scheduled for 15 November 2007. The appellant accepted that invitation and on 15 November 2007, attended the hearing. 5 The Tribunal was not satisfied that the appellant faced a real chance of persecution for a convention based reason. The Tribunal noted that critical to the appellant's claims was an acceptance that he was a freelance journalist, and that he published a number of articles on the Gujurat riots which may have had an inflammatory effect due to their content. The Tribunal undertook its own investigations and discovered articles that had been written in a number of publications in India which the appellant appeared to have plagiarised. The Tribunal noted that it was unable to locate any articles attributed to someone with the appellant's name in the period relied upon by the appellant. The Tribunal noted that it had put this information to the appellant in accordance with the provisions of s 424AA of the Migration Act 1958 (Cth) ('the Act), and that the appellant was given an opportunity to respond, but that he had provided no comment. 6 Accordingly, the Tribunal concluded that it could not be satisfied that the appellant was a witness of truth. It found that the appellant had not worked as a freelance journalist, and that his claims for protection had been 'fabricated in an attempt to elicit Australia's protection obligations' (at 12).

THE FEDERAL MAGISTRATES COURT 7 In an application for judicial review filed on 5 February 2008, an amended application filed on 18 April 2008 and a further amended application filed on 16 June 2008 in the Federal Magistrates Court, the appellant claimed that: · The Tribunal failed to afford the appellant natural justice. · The Tribunal made an error of law as it did not put any weight to the relevant facts and/or the documents. · The Tribunal relied on irrelevant materials and/or asked questions about unnecessary matters. · The Tribunal failed to exercise its jurisdiction under the Actand/or acted in excess of its jurisdiction. · The Tribunal failed to comply with s 424A of the Act. · The Tribunal acted in excess of its jurisdiction by making the comment that the appellant would not experience serious harm as defined in the Act on return to India. · The Tribunal failed to provide 'the benefit of doubt' to the appellant. 8 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, was satisfied that the Tribunal had followed the procedures set out in s 424AA of the Act in relation to the information (or absence of information) concerning the articles provided by the appellant. As such, the Tribunal was relieved from its obligations under s 424A of the Act pursuant to s 424A(2A) of the Act. 9 The Federal Magistrate was satisfied that the Tribunal had clearly considered the articles adduced by the appellant, but had rejected his claim that he had been the author. The Tribunal concluded that at least three of the documents appeared to be concocted from articles written by other people and the Federal Magistrate felt that, in these circumstances, the Tribunal was entitled to reject all of the appellant's documents on the basis that they had been concocted, and to determine that the appellant did not hold a well-founded fear of serious harm in India. 10 Further, the Federal Magistrate was satisfied that the Tribunal had not considered any irrelevant material or unnecessary matters. The Federal Magistrate found that it was open to the Tribunal to make its finding that the appellant would not experience serious harm if he returned to India and the Tribunal was not required to give the appellant the benefit of the doubt, having reached firm conclusions on the substantive issues by rejecting the appellant's claim to have been a freelance journalist. 11 The Federal Magistrate found that given the Tribunal made firm positive findings that the appellant was not a freelance journalist and that he had not written inflammatory articles, there was no obligation on the Tribunal to consider the appellant's case upon the hypothesis that its findings might be wrong. 12 The Federal Magistrate concluded that the Tribunal decision was free from jurisdictional error and accordingly dismissed the application with costs.

THE PRESENT APPEAL 13 The appellant's notice of appeal, filed in the Federal Court of Australia on 29 August 2008, raised the following grounds: · The Tribunal failed to comply with s 424A of the Act as it failed to invite the appellant to provide written comment in relation to its adverse finding that the appellant had plagiarised the articles. · The Tribunal acted in excess of its jurisdiction by commenting that the appellant would not experience serious harm as defined in the Act upon return to India. · The Tribunal failed to provide the benefit of the doubt to the appellant who was credible but unable to substantiate all of his claims. 14 Prior to hearing the appeal before me the appellant submitted an outline of submissions filed on 11 November 2008. These submissions effectively repeat the matters raised before the Federal Magistrates Court, and support the grounds of appeal raised before the Court. 15 The three grounds of appeal in the appellant's notice of appeal are expressed in identical terms to those in the further amended application filed in the court below. 16 The grounds do not identify any error in the judgment of the Federal Magistrate (which is properly the subject of the present appeal). The grounds seek to impermissibly review on appeal the decision of the Tribunal by seeking a review on the merits: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]. 17 The Federal Magistrate dealt with all of the grounds now pleaded in the notice of appeal to this Court and, for the reasons outlined by the Federal Magistrate, those grounds of appeal cannot succeed. 18 There is no basis upon which to uphold the appellant's claim of jurisdictional error on the part of the Tribunal or reviewable error by the Federal Magistrate. The Tribunal did not consider that the appellant was a witness of truth. As the sole arbiter of the facts, such findings were open to the Tribunal to make on the materials before it and were within its jurisdiction. Findings on credibility are matters of fact for the Tribunal alone and will not normally be disturbed by the Court: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. I see no reason to disturb such findings in this case. 19 It seems on the material that the Tribunal did give to the appellant the opportunity to comment on the important issue of plagiarism or copying other people's work, and the question of whether the appellant was a freelance journalist. The appellant, upon being given this opportunity, did not seek additional time in which to consider the matters brought to his attention, and eventually decided to make no comment.

CONCLUSION 20 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct. 21 The appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 28 November 2008 Counsel for the Appellant: In person

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