SZMFL v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant's passport indicates that he is a citizen of the Republic of India, and this is a fact which has been found by those whose duty under the Migration Act 1958 (Cth) (the Act) is to make findings of fact. It will be necessary, a little later in these reasons, to comment further upon that finding of fact and claims which the Appellant made in respect of his application for a protection visa and evidence which he subsequently came to give. 2 The Appellant arrived in Australia on 5 August 2007, utilising for that purpose his Indian passport. The following month, on 10 September 2007, he lodged an application for a protection visa with the Department of Immigration and Citizenship. On 27 November 2007, a delegate of the Minister for Immigration and Citizenship (the Minister) refused that application. The Minister is the active party Respondent to the present appeal. 3 As was his right under the Act, the Appellant sought the review on the merits of his protection visa application by the Refugee Review Tribunal (the Tribunal). On 19 March 2008, the Tribunal decided to affirm the decision of the Minister's delegate to refuse the protection visa application. The Tribunal's decision and the reasons for that decision were released to the Appellant by the Tribunal under cover of a letter of 10 April 2008. The Appellant then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. 4 On 26 November 2008, for reasons which were published that day, the Federal Magistrates Court dismissed the Appellant's judicial review application. It is from that decision that the Appellant appeals to this Court. The Appellant represented himself at the hearing of the appeal today. 5 The grounds of appeal as specified in the notice of appeal are these: 1. The RRT misunderstood my problems advanced by me. 2. The RRT did not deal with my claims. 3. The RRT breached the procedures [sic]. 6 The Appellant gave some further detail in his oral submissions in respect of the concern that he had which lay behind those bare and general grounds. His oral submissions were noteworthy for their candour, precision and also, with respect, dignity. The essence of the Appellant's concern as related in oral submissions was his feeling that the Tribunal had dealt with him in an angry manner such that he was not able to advance his case properly. His concern was that the Tribunal did not believe him. Lurking behind that concern, it seemed to me from what he stated in respect of his feeling concerning the Tribunal proceeding, was an apprehension on his part that whatever he said would not be believed. 7 There are some observations which should be made at once in relation to the way in which the grounds of appeal are cast and in relation to the concerns voiced by the Appellant in his oral submissions. As to the grounds of appeal, it is to be remembered that the proceeding in this Court is in the nature of an appeal from the Federal Magistrates Court. It is no part of the role of this Court on an appeal to conduct itself the judicial review of the decision of the Tribunal. 8 That was the role of the Federal Magistrates Court. The question in this Court must be whether, having regard to the grounds identified in a notice of appeal, the decision of the Federal Magistrates Court is in error. It is important that grounds of appeal engage with the decision of the Federal Magistrates Court. 9 As to the concerns voiced by the appellant in his oral submissions, it is undoubtedly the case that the Tribunal is obliged by s 425 of the Act to offer a real and meaningful opportunity to an applicant before it to give evidence and present arguments relating to the issues which arise in relation to the decision under review. Likewise, it is equally undoubted that the Tribunal must not either be actually biased or, in the way in which the proceedings are conducted before it, give the appearance of bias. 10 A challenge on either of these bases must be made on evidence and the proper place for the giving of that evidence in respect of such a challenge is before the Federal Magistrates Court. The only evidence to hand in respect of the proceedings before the Tribunal is contained in the reasons published by the Tribunal, in the inferences one might draw reasonably from those reasons as to the course of proceedings before the Tribunal and in correspondence directed to the Appellant by the Tribunal prior to the making of the Tribunal's decision. 11 I have studied the Tribunal's reasons and its prior correspondence. 12 Viewed together, they evidence a comprehensive engagement by the Tribunal with the basis upon which the Appellant made his claim for a protection visa and the adoption by the Tribunal of a procedure which exceeded, in its apparent fairness, that which the Act arguably obliged the Tribunal to adopt. 13 The Tribunal hearing was a two staged process. Included in the appeal book is a letter dated 12 February 2008 which the Tribunal sent to the Appellant after initially receiving evidence from him at a hearing he was invited to attend. That letter contains a note of the evidence which he gave as the Tribunal recorded it at the first hearing. The Tribunal, in respect of this evidence, gave the following invitation: You are invited to comment or respond to that record as set out, including whether your recollection accords with that of the tribunal's or whether its understanding of your evidence accords with your aim. 14 The Tribunal also sought comment from the Appellant in the letter in respect of particular subjects arising from his evidence as given at the first hearing which might, so the Tribunal stated in its letter, form part of the reason for affirming the decision under review. Having regard to the exclusions from the obligation which falls on the Tribunal under s 424A of the Act, which are found in s 424A(3), and the remarks given in the High Court's judgment in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at para 17 and para 18, it may very well be the case that the Tribunal, in the despatch of this letter, exceeded what the Act strictly required of it. That is hardly a basis of criticism in respect of the proceedings in the Tribunal. See SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at para 30. 15 A reading of such material as is available in evidence in respect of the proceedings before the Tribunal does not support objectively either an apprehension as to bias or a conclusion that the Tribunal did not deal fairly with the Appellant. That is not to say that the Appellant may not have subjective feelings, but, and it is a significant "but", more than that is needed to advance a challenge of the kind which might in law lurk behind the concerns which he voiced today. 16 Furthermore, and as I have already indicated, those concerns were a matter for evidence and then challenge on jurisdictional error grounds before the Federal Magistrate. Something should be said in respect of the basis upon which the Appellant advanced his claim for a protection visa. As alleged by him, his claim arose against the background of experience which his father had in India. His father, so the Appellant claimed, had fallen under suspicion with authorities in India, been detained for three years, released and then in 1996 again been taken away by authorities and not seen again. 17 The Appellant's claim was that his father had been implicated with the organisation known as the Liberation Tigers of Tamil Eelam (LTTE). His claim was that after his father's arrest in 1996, he had become a driver for the LTTE the following year. His claim was that in 2001, police from "Q branch", which I infer to be akin to what we might term "Special Branch", had forcibly entered his house and had taken literature in relation to the LTTE. His claim was that he had been arrested, that charges were filed against him and that police had hired "rowdies" to attack him. His apprehension was that if he returned either to India or, for that matter, Sri Lanka, he would be arrested and killed by the authorities. 18 It was this very claim that the Tribunal addressed and addressed in considerable detail in its reasons. One indication of the attention to detail which the Tribunal gave to the Appellant's claims is to be found in the headings against which the Tribunal set out its findings and reasons: Credibility, Membership and Activity with the LTTE, Arrest and Detention, Other Incidences of Past Harm, Future Harm, Relocation and State Protection. 19 The Appellant supported his protection visa claim with a medical report from a radiological clinic in Australia. That report detailed the results of an X-ray study of his left leg. Materially, that study detailed well-healed, old fractures of his lower tibia and fibula. The Appellant's evidence was that his left leg had been injured in the attack on him by "Rowdies." The Tribunal did not ignore the corroboration which the X-ray study offered of an injury to his left leg. Rather, what the Tribunal did not accept was that the injury was occasioned by an assault which had anything to do with membership of the LTTE or with involvement with that organisation on the part of the Appellant. 20 The Tribunal, for reasons which it set out at length, did not accept the Appellant's claim to have involvement with the LTTE. The conclusions reached by the Tribunal in that regard are not inherently illogical. It is well-settled that, subject to an exception in respect of illogicality, conclusions as to credibility are, "par excellence", matters for the Tribunal. 21 The Appellant stated in evidence before the Tribunal that he did not consider himself to be Indian, but rather that he was stateless. I can well understand how, at a subjective level, a person of a particular ethnic group might not consider themselves to be a citizen even if strictly in law they were a citizen of a particular country. The fact of the matter is, though, as the Tribunal was entitled to find on the evidence before it, that the Appellant is an Indian national.