SZNJH v Minister for Immigration and Citizenship

Federal Court of Australia|2009-08-20|Before: Reeves J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 19 June 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 25 February 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a protection visa to the appellant.

factual summary 2 The appellant is a citizen of India who arrived in Australia on 5 July 2008. On 6 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused that application on 29 October 2008. On 21 November 2008 the appellant applied to the Tribunal for a review of that decision. 3 In his application for a protection visa, the appellant claimed that he became involved in politics while at University, becoming involved in the People's War Group ('PWG'). He claimed he became responsible for motivating the other students, handing out pamphlets and arranging a number of secret meetings. He claimed that as he became more aware of the PWG's ideology and associations he gradually started to distance himself from them. He stated that he told the party that he was no longer interested in carrying out party work and that he did not like what was happening in his State. The appellant claimed that, as a result of not attending the District headquarters, as directed, PWG people came to his house and threatened him and his family. The appellant claimed he reported the matter to police however, he stated that they advised him that they would not be able to protect him. After that, the appellant claimed that each time the police attacked PWG members, he was suspected by the PWG of being the informant. 4 At the hearing before the Tribunal, the appellant further stated that he left the PWG in 2002 because he did not like the group's attitudes. He claimed that he was attacked while out with a group of friends in 2001. The friends had warned him that the PWG people were planning to kill him as he was suspected of being a police informer. Two men ran after him with knives and he sustained an injury to his arm. The appellant claimed he reported the matter to the police however, they informed him that they could not protect him as he was part of the PWG. He moved to Hyderabad at the end of 2001. However, in 2005 the PWG found out where he was and went to his house. Thereafter he was forced to move around to avoid them. He stated that in December 2007, ten men, who were armed with guns and knives, went to the college where he worked looking for him. He stated that the principal phoned him and warned him to escape. He phoned his wife and told her to go to his father's village and he then went to Madras. Shortly thereafter he obtained a business (short stay) visa and came to Australia.

THE tribunal's decision 5 The Tribunal found that the appellant was not truthful or credible. In making this finding the Tribunal noted that there were a number of contradictions, inconsistencies and implausibilities in the appellant's evidence, including that he: gave inconsistent evidence about when he moved to Hyderabad; raised a new claim at the Tribunal hearing about an assault in 2001 despite also giving evidence that he was arranging meetings in 2001-2002 and that he left the group in 2002; raised at the Tribunal hearing for the first time a claim that ten men were looking for him at College; gave inconsistent evidence about where he had lived; and had remained in India after having a passport issued on 11 December 2007. 6 The Tribunal expressed its concerns about these matters to the appellant and gave him an opportunity to address those concerns in writing and to put forward any other matters he wished to. The appellant's written response was received by the Tribunal on 16 February 2009. However, the Tribunal considered it merely repeated his claims as set out in his protection visa application and failed to address the Tribunal's concerns. 7 As a result of its adverse credibility finding, the Tribunal rejected the appellant's key claims that: he was involved with the PWG in India; that he suffered any harm as claimed; the appellant and his wife were targeted by members of the PWG from 2001 until he left India in 2008; and he will be targeted in the reasonably foreseeable future if he returns to India. The Tribunal did not accept that the appellant was suspected of being a police informant, or was the subject of threats for the period claimed. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, and affirmed the decision of the delegate not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATE'S DECISION 8 In his application for judicial review to the Federal Magistrates Court dated 24 March 2009, the appellant raised the following grounds: (1) The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant's claims were implausible, being conclusions that were no obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. (2) The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. (3) The [Tribunal] has failed to investigate my claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 24 February 2009 was effected by actual bias constituting judicial error. (4) The Tribunal failed to comply with s.424 of the Migration Act [1]958. Particulars (a) At the hearing, the Tribunal invited the applicant to give information additional to that which the Tribunal had obtained. i. The Tribunal asked the questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way. (b) The invitation was not given the accordance with s.424(3)(a) and 424B of the Migration Act: i. The invitation did not specify the way in which the additional information may be given. ii. The invitation did not specify the period within which the information was to be given. 9 In relation to ground 1, the Federal Magistrate noted that this ground was unparticularised. His Honour concluded that the adverse view that the Tribunal took of the appellant's claims and evidence were findings of fact that were solely within the jurisdiction of the Tribunal and that the Court could not review those findings of fact. His Honour was satisfied that the basis for the Tribunal's conclusions were set out in its reasons and were open to it on the evidence. His Honour further noted that the information before the Tribunal was that contained in the appellant's protection visa application, his oral evidence and his passport, and was therefore exempt from the operation of s 424A of the Migration Act 1958 (Cth) ('the Act') by ss 424A(3)(ba) and 424A(3(b). 10 His Honour further concluded that, in any event, the Tribunal did raise its concerns about the appellant's evidence with him at the hearing, probably exceeding its obligations under s 424AA of the Act. His Honour was also satisfied that the Tribunal had complied with its obligations under s 425 of the Act, as it had raised with the appellant the concerns it had with his evidence and thereby ensured that he was on notice of the determinative issues in the review. 11 In relation to ground 2, the Federal Magistrate found that this ground merely sought to invite the Court to undertake a review of the merits of the Tribunal's decision and its assessment of the credibility of the appellant's claims. His Honour observed that the Court could not engage in merits review, and found that the Tribunal clearly turned its mind to the correct question and applied the correct test. 12 In relation to ground 3, the Federal Magistrate stated that the Tribunal was under no obligation to undertake further inquiries, or to verify or investigate the appellant's claims and it was for the appellant to make out his case. His Honour found that there was no evidence or material to suggest that there was any basis to support an allegation of bias against the Tribunal member. 13 Finally, the Federal Magistrate found that the fourth ground was misconceived, as it confused the Tribunal's purported action under s 424AA. His Honour stated that it was incorrect to suggest that the Tribunal invited the appellant to provide additional information under s 424, instead the appellant was given an opportunity to address the Tribunal's concerns and to put forward any other matters in writing. His Honour found that this opportunity flowed from the Tribunal's conduct in accordance with s 424AA and the appellant's request for time to address the Tribunal's concerns. Section 424 of the Act therefore had no relevant application. 14 Having found no jurisdictional error in the decision of the Tribunal, the Federal Magistrate accordingly dismissed the application for review.

the present APPEAL 15 On 9 July 2009 the appellant filed a notice of appeal in this Court which alleged that: 1. The honourable FM failed to consider the grounds my application such as error of law made by the Tribunal. The court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the UN Convention act. 16 At the hearing of this appeal before me, the appellant appeared in person unrepresented but assisted by an interpreter. Mr White appeared for the Minister. 17 In his oral submissions, the appellant devoted most of his attention to the problems he claimed had occurred with the interpreter who assisted him at the Tribunal and at the hearing before the Federal Magistrates Court. In relation to the former, I note that the appellant raised a similar concern before the Federal Magistrate and, after considering those concerns in some detail, his Honour rejected them (see [2009] FMCA 578 at [6]), finding that: "There is no evidence of any interpretation problems having occurred at the Tribunal hearing or of the applicant making any complaint about any asserted problems." In relation to the latter, there is similarly no mention in his reasons for decision, of any such concern being expressed to the Federal Magistrate. I consider this absence is significant when one takes into account the fact that the same issue was raised before the Federal Magistrate and rejected by him in relation to the problems the appellant claimed he had with the interpreter before the Tribunal. Otherwise, the appellant has not provided a transcript of the hearing before the Federal Magistrate, or provided any evidence to support his claims about having had problems with the interpreter. Finally, I note that this is not mentioned in the notice of appeal (above). For these reasons, like the Federal Magistrate, I reject the appellant's asserted problems with interpreters.

consideration 18 In my view, this appeal is entirely devoid of merit and must be dismissed. The sole ground of appeal is not particularised and is stated in very general terms. It does not identify any specific error, let alone a jurisdictional error. The only error it does identify in very general terms is that: "The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the UN Convention act (sic)." 19 If this statement identifies any error at all, it is plainly an error of fact. It is trite that neither the Federal Magistrates Court, nor this Court, has any power to review the Tribunal's findings of fact, or conduct a review of the Tribunal's decision on its merits. These are matters that fall squarely within the fact finding jurisdiction of the Tribunal: see, for example, NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]. 20 Notwithstanding that this sole ground of appeal is completely devoid of merit, because the appellant is unrepresented, I have considered the reasons of the Federal Magistrate in relation to the grounds of appeal raised before him (which differ from the sole ground of appeal before this Court). Having done so, I have not been able to detect any error therein, let alone any jurisdictional error.

conclusion 21 For these reasons, this appeal must be dismissed. I will hear the parties on the question of costs. I certify that the preceding twenty -one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 20 August 2009 Appellant appeared in person.

Solicitor for the First Respondent: Sparke Helmore

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