SZMXS v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant is a citizen of India who arrived in Australia on 7 February 2008. 2 On 14 March 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. A statement provided in support of that application claimed persecution by reason of his Muslim beliefs. Persecution was allegedly increased by reason of the now Appellant's position as a journalist with an Indian newspaper, variously described as the "Gujarat Today" and the "Gujarat Daily". The statement claimed that he had become one of "the leading activists of the Muslim community" and "was their hope and inspiration". The application was refused by a delegate of the Minister on 10 April 2008. The now Appellant sought review by the Refugee Review Tribunal on 30 April 2008. 3 The Tribunal affirmed the delegate's decision on 13 October 2008. In affirming the delegate's decision, the Tribunal made adverse findings as to the credit of the now Appellant, including (in part) the following: [138] Based on the above-noted evidentiary concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness and that he has fabricated claims in order to support his application for a protection visa. [139] The Tribunal does not accept that the applicant was oppressed and targeted by Hindu students at school because he was a Muslim, or that he left school because he was targeted or oppressed. It does not accept that he wrote articles for a Muslim daily newspaper as he has claimed. It does not accept that he was jailed on any occasion because of the articles he wrote, or because he was a Muslim and an activist or because he provided social services to the Muslim community. It does not accept that the applicant was a leading Muslim activist. … 4 On 11 November 2008, an Application was filed with the Federal Magistrates Court of Australia. The Grounds set forth in that Application were expressed as follows (without alteration): The Grounds of the Application are: 1. The Tribunal committed jurisdictional error of law by failing to consider an integer of the applicant's claim. Particulars: a. The applicant was not provided the documents to the Applicant which he was relied in making the decision of the application. b. In respect to the enquiries to the Gujrat daily it was admitted that the Applicant was worked there. 2. The Tribunal made irrelevant consideration in deciding the case. 3. The Tribunal founding was based on wrong footings and no basis in making this decision. 4. In term of a false case the Tribunal said that the there is no charges against the applicant. There is no basis of this as such the Tribunal made an error in making this decision. A Response filed on behalf of the First Respondent on 20 November 2008 contended that "[t]he matters expressed as particulars in relation to the first ground do not meaningfully identify any jurisdictional error, and the remaining grounds are completely unparticularised". 5 The Application was subsequently amended on 30 January 2009. The Amended Application set forth the Grounds upon which it was advanced as follows (without alteration): Ground one. The Tribunal failed to take into account a relevant consideration, and failed to give genuine, realistic, and proper consideration, to a central aspect of the Applicant's claim, which was that the Applicant worked as a journalist for the Gujarat daily, and published numerous articles with his byline attached, which supported his claims to be a Muslim activist, targeted by the authorities in India (Tickner v Bropho (1993) 40 FCR 183, at 197-199). Particulars. 1.1 A simple inquiry of the editor of the Gujarat Daily, as requested by the Applicant, would have revealed that the Applicant had worked for the Gujarat Daily as claimed. 1.2 The Tribunal's own request that DFAT in India verify that the form of the press card held by the Applicant was consistent with the press cards issued by the Gujarat Daily newspaper had not been complied with, and could simply have been followed up. 1.3 The form of DFAT's response to the Tribunal request that it attempt to verify these claims central to the Applicant's case was sufficient to alert the Tribunal to an obvious obscurity or problem with the inquiries made by DFAT; the source was clearly either unco-operative or not sufficiently informed. Ground two. The Tribunal failed to comply with section 425 of the Migration Act 1958, and failed to give the applicant a proper opportunity to appear before the Tribunal and present evidence and argument in relation to the issues upon which the case turned in refusing to accept the tender of articles written by the Applicant in the Gujarat Daily newspaper, which were relevant because they could easily have been authenticated through DFAT in India. The Minister was called upon to show cause why relief should not be granted on these Grounds. The Federal Magistrates Court dismissed the Application before it on 25 June 2009: SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537. 6 Before the Federal Magistrates Court the now Appellant was represented by Counsel. 7 A Notice of Appeal was thereafter filed in this Court on 14 July 2009. The Grounds of Appeal provide as follows (without alteration): 1. In term of false case the Respondent said that there is no charges against appellant. There is no basis of this as such the Respondent made an error in making this decision - 2. The Respondent committed jurisdictional error of LAW by failing to consider an integer of Appellant's claim: (a) that Appellant no provide documents which was relied in making the decision (b) about enquiries to the GUJRAT DAILY employment. 3. The Respondent made irrelevant consideration in deciding the case and Respondent founding was based on wrong footing and no basis in making this decision 8 The Appellant appeared before this Court unrepresented, although he did have the benefit of an interpreter. The Appellant had requested that a male interpreter be provided, but the interpreter available on the day of the hearing was female. The Appellant sought a male interpreter, he explained, to avoid "confusion". The hearing of the appeal nevertheless proceeded with the benefit that the female interpreter provided. As events unfolded, no "confusion" emerged. 9 The appeal is to be dismissed. None of the Grounds of Appeal, it is considered, should prevail. None of the Grounds of Appeal, it should be noted, attempt to identify any appellable error said to have been committed by the Federal Magistrate. Nor is the Appellant's position improved even if the Notice of Appeal is to be construed as seeking to contend that the Federal Magistrate erred in not acceding to like contentions. None of the Grounds - however construed - have any apparent merit.