SZNJZ v Minister for Immigration and Citizenship

4 In the documents that the appellant provided to the Department of Immigration and Citizenship ('the Department'), the appellant had claimed that he had undertaken a pre-degree course at a college associated with Kerala University in 1997 and had become a member of the Kerala Catholic Youth Movement ('KCYM') whilst undertaking such studies. The appellant alleged that in March 2008 the Kerala government had published new textbooks which stated that students should not believe in Christianity; that the KCYM had participated in protests against the distribution of such text books; and that there had been clashes between the KCYM and the police as a result of which the appellant had been hospitalised. The appellant alleged that Communist Party members had sent gangsters to ransack his home while he was not there; that as a result of this attack his possessions were damaged and his wife and children were shouted at; and that he then took his wife and children to the house of his parents-in-law and then travelled to Chennai where he stayed with friends for some days. The appellant stated that Communist Party members were still searching for him so he decided to come to Australia for World Youth Day. The appellant claimed that he had left India because the Communist Party had been harassing him and that the Kerala government was against the Christian religion.

5 During the subsequent interview with the Minster's delegate on 22 October 2008 the appellant made additional claims, namely that his wife and children were under threat and were scared and that he would definitely be killed by the Communist Party if he returned to India. The appellant also elaborated on the details of his involvement with the KCYM's clashes with police and his hospitalisation.

6 The appellant appeared before a Tribunal hearing on 10 February 2009. Before such hearing the appellant made numerous other claims including that he had left India because a Hindu extremist group and related groups had been harassing him and that Communists were also targeting him. The appellant claimed that such problems had arisen after 20 April 2008; that he had been hospitalised on 26 April 2008; and that on 31 [sic] April 2008 he had received a telephone call from a friend informing him that communists had ransacked his home. Several other claims were made.

7 The Tribunal delivered its decision on 5 March 2009. However on 18 June 2009 the Federal Magistrates Court of Australia ordered, by consent, that a writ of mandamus issue to the Tribunal quashing the decision.

8 A second Tribunal hearing took place on 17 August 2009 in which the appellant made numerous additional claims.

9 The Tribunal found that there were good reasons for concluding that the appellant was not telling the truth concerning his reasons for leaving his home in Kerala and that the appellant's evidence was inconsistent in relation to the timing of various events in which he said he was threatened, hospitalised and attacked. The Tribunal did not accept that the appellant had taken part in a protest rally or demonstration as he had claimed, nor that there was a real chance that if the appellant returned to his home in Kerala, then or in the reasonably foreseeable future, he would be killed or otherwise persecuted by the Kerala government or its agents, by the Communist Party or its workers or by any extremist Hindu organisation for reason of his religion, his real or implied political opinion opposed to the Communist Party or his membership of the KCYM. Accordingly the Tribunal concluded that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) ('the Act') for a protection visa.

10 By Application dated 26 October 2009 the appellant applied for judicial review of the Tribunal's decision. An Amended Application was filed on 6 January 2010 which raised two grounds for review, namely that the Tribunal failed to exercise jurisdiction because it took into account irrelevant considerations when purporting to comply with s 424AA(b)(iv) of the Act; and secondly that the Tribunal failed to attain, or failed to exercise jurisdiction, by reason of the Tribunal's appointment of a Malayalam interpreter who made errors in the interpretation of the appellant's evidence.

11 As to the first ground, Cameron FM considered the particulars and concluded, after having considered the Tribunal's reasoning, that no error as alleged was disclosed.

12 As to the second ground of review, namely the lack of interpreter services, the appellant's allegation was unsupported by any evidence. The appellant was invited to file and serve any additional evidence that he sought to rely upon, including the transcript of the Tribunal hearing, but declined to do so. Given the lack of particularisation of the ground of appeal and the lack of any evidence in support of it, Cameron FM was unable to find any error as alleged. For these reasons the Application was dismissed.

APPEAL TO THIS COURT 13 On 8 March 2010 a Notice of Appeal from the decision of Cameron FM was filed in this Court. The Court sets out verbatim the following grounds of appeal: 1. The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of 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 appellant was a refugee within the meaning of the Act.

(a) The Tribunal made Jurisdictional error by failing to accord procedural fairness to consider that the Applicant is a Christian or that he or any member of his family was involved in any actual or perceived Christian-related activities in India or in Australia.

2. The Tribunal is required to give accurate particulars of adverse information to the Applicant; its failure to do so is a jurisdictional error SZEEU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SUBMISSIONS 14 The appellant appeared unrepresented but assisted by an interpreter. The appellant made no submissions in respect of the grounds of appeal contained in the Notice of Appeal. However the appellant, in his oral submissions, claimed that before the Tribunal he had not been provided with an interpreter who could translate his testimony accurately.

15 The appellant also claimed that the Tribunal did not give him time to obtain a photograph which showed him being attacked by the police in India in April 2008 and a certificate from a medical practitioner at a hospital where he was taken after the attack.

16 The Court will first address the issues raised by the grounds of appeal contained in the Notice of Appeal, and thereafter consider the appellant's oral submissions made before this Court.

FINDINGS 17 It should be observed that neither ground of appeal contained in the appellant's Notice of Appeal was raised for determination before the Federal Magistrate. Leave is required to raise a new ground of appeal: see Iyer v Minster for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. Leave however may be granted if it is '…expedient in the interest of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]. Such consideration requires the Court to examine the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26]. The Minister opposes the grant of leave.

18 The Court has had difficulty in ascertaining the precise meaning of the first ground of appeal. In respect of the apparent complaint that the Tribunal failed to give the appellant 'the opportunity of the adverse information in possession of the Tribunal', such issue appears to overlap with the second ground of appeal. Accordingly, these reasons will deal with such issue under the second ground of appeal.

19 As to the remaining text of the first ground of appeal including the sole particular provided, it is difficult to comprehend the claim that the Tribunal failed to consider that the appellant was a Christian or that he or any member of his family was involved in any actual or perceived Christian-related activities in India or Australia. At [84] of the Tribunal's finding the Tribunal said:

I accept that the applicant is a Roman Catholic or a 'Latin Catholic' as it is known in Kerala.

20 The Tribunal therefore clearly accepted that the appellant was a Christian.

21 As to the claim that the Tribunal failed to accord procedural fairness because it did not consider that the appellant '…or any member of his family was involved in any actual or perceived Christian-related activities', it was not put by the appellant that his family were involved in any such activities. As to the appellant's alleged activities, the Tribunal found, having weighed up the allegations which the appellant made, that he could not be believed. At [84] the Tribunal said:

However I do not accept on the evidence before me that the applicant was ever persecuted by the Government in Kerala or its agents or the Communist Party or its workers or by goondas associated with the Communist Party or by his claimed Communist brother-in-law for reasons of his religion, his real or imputed political opinion opposed to the Communist Party or his membership of the real or imputed political opinion opposed to the Communist Party or his membership of the KCYM. Having regard to the view I have formed of the applicant's credibility I likewise do not accept that the applicant was ever persecuted by the RSS as he claimed at the hearing before the first Tribunal.

22 The Tribunal thus considered the appellant's involvement in activities in India and concluded that he was never persecuted by reason of his Christian beliefs.

23 The Court is unable to review the factual findings made by a Tribunal: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. Further, the Tribunal's finding in respect of the appellant's credibility is a matter for it alone: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 at [67]. The Tribunal's finding that the appellant was not persecuted because of his Christian beliefs was a finding of fact.

24 The appellant's Notice of Appeal suggests that the Tribunal failed to consider the appellant's activities in Australia. The appellant made no previous claim that his activities in Australia had any relevance to his alleged status as a refugee and there is no evident to support such an allegation. 25 It follows that the first ground has no merit and leave to rely upon such ground is therefore refused.

26 As to the second proposed ground of appeal, such ground of appeal is a 'pro forma' ground, previously raised in numerous appeals before this Court. It refers to SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 in which the Full Court found that the Tribunal had failed to comply with the requirements of s 424A of the Act.

27 No particulars are provided of the adverse information allegedly not put to the appellant. The Tribunal put to the appellant, inter alia, Indian press reports referring to protests concerning the use of text books; Indian press reports referring to a dispute between the Government and Christian groups in Kerala in March 2008; details of independent advice received by the Department of Foreign Affairs and Trade ('DFAT') from a member of the Keralan Human Rights Commission; information regarding the situation of Christian groups in India contained in DFAT Report No. 978 dated 6 March 2009 and DFAT Report No. 538 dated 20 September 2006; and information provided by the appellant at an interview with the Department. All such information was put to the appellant in accordance with s 424AA of the Act and the appellant was invited by the Tribunal to comment upon it.

28 The appellant alleged before Cameron FM that he required more time to respond to questions put to him during the Tribunal hearing. However, since the appellant had previously put to the Tribunal a quantity of papers which were irrelevant, the Tribunal disallowed further time. On this issue it is helpful to reproduce the Tribunal's decision at [73] as follows: I noted that, as I had mentioned earlier, he was entitled to seek additional time to comment on, or to respond to, the information I had given him in the course of the hearing. The applicant said that if he got some time he could give me a report. I indicated that I needed to consider whether he reasonably needed additional time. I noted that this was the second time he had been before the Tribunal and he had already given me a large quantity of reports none of which seemed to help his case in any way. I indicated to him that before I gave him additional time I needed to know what sort of additional evidence he was thinking of producing. The applicant said that he believed that the Australian Government might protect him and he could give anything required for that but personally he did not have anything much to give. I put to the applicant that the press reports about the textbooks which he had produced related to things which had happened in July so they did not support his claims in any way. The applicant said that he had left after this incident. He said that he just wanted to show me that these were the things happening in Kerala.

I put to the applicant that I did not accept on the basis of what he had said that he did reasonably need additional time. The applicant repeated that if he got some more time he could produce some additional papers. I noted that he had ample time to produce any documents relating to his case and he had produced a large quantity of reports at the hearing.

29 Cameron FM held that under s 424AA of the Act, additional time did not automatically follow upon request, and that there was no error by the Tribunal by its refusal to accede to such request. The Tribunal had not acted upon a wrong principle, taken into account irrelevant considerations, mistaken the facts, failed to take into account a relevant consideration, acted with manifest unreasonableness, nor declined the appellant's request capriciously. The appellant's request for additional time to produce additional reports was considered by the Tribunal to be unnecessary and unreasonable, especially in view of the fact that material had been produced at the previous hearing which was not relevant.

30 Section 424AA(b)(iv) of the Act is not concerned with the question whether the appellant should have a further opportunity generally to provide documents in support of his claims. The opportunity which may be granted by a Tribunal is confined to 'additional time to comment on or respond to the information' put to the appellant pursuant to s 424AA. The appellant sought the additional time to produce information of developments which were occurring in Kerala and was not responsive to the Tribunal's concerns put to him under s 424AA.

31 The decision to grant additional time is discretionary and there is no demonstrative error in the Tribunal's refusal to grant additional time. As was observed in Peko-Wallsend at 40-41:

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 at 228. [Citation included]

32 It follows that there is no error in Cameron FM's findings that the Tribunal's discretion was validly exercised. Accordingly, leave to rely upon the second ground of the Notice of Appeal is refused.

33 Although not raised in the Notice of Appeal, the appellant claimed before Cameron FM that there were difficulties with the interpretation of his oral evidence before the Tribunal. The claim was again raised in the hearing before this Court. As already referred to, such claim was unparticularised and unsupported by any evidence before the Federal Magistrate. Accordingly, his Honour found that there was no evidentiary basis to conclude that the Tribunal's account of the hearing on 17 August 2009 was not accurate.

34 It is the responsibility of the appellant to produce evidence of any alleged misinterpretation, and to prove such claim: see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18]. Cameron FM provided the appellant the opportunity to provide evidence in support of his allegation but no evidence was provided.

35 In the absence of such evidence, Cameron FM was correct to reject the claim and the Court finds no error in his decision. Accordingly leave to appeal on this ground is also refused.

36 In view of the above findings, the appeal is dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.