SZNNK v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-26|Before: McKerracher J

INTRODUCTION 1 The appellant is a citizen of India. He arrived in Australia on 6 July 2008. On 18 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application on 4 December 2008. On 23 December 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision and the appellant sought review with the Federal Magistrates Court. 2 This is an appeal from the judgment of a Federal Magistrate delivered on 17 September 2009 (SZNNK v Minister for Immigration & Anor [2009] FMCA 972). His Honour dismissed the application for judicial review of the decision of the Tribunal handed down on 30 March 2009.

THE APPELLANT'S CLAIMS 3 The appellant claimed to fear persecution due to his membership of the Radical Youth League (RYL), which was affiliated to the Communist Party of India (Maoist) (CPI(Maoist)) and because he was a devout Latin Catholic (Roman Catholic). 4 He claimed that in 2002 members of the Bharatiya Janata Party attacked and ransacked his house. He stated that the police refused to accept his complaint against the local Hindu leaders and instead arrested him and held him for three months without bail. He claimed that the case is pending against him. 5 The appellant claimed that between 2003 and 2005, whilst working as a manager for a tour company, he organised underground meetings for the CPI(Maoist) party. He claimed that he was arrested by the police after evidence was obtained from an informer. He was tortured and detained in prison for six months. He claimed that this case is also pending against him in the courts. 6 He claimed that he went to Dubai in 2006 and worked, however he was terminated from his employment and sent back to India after organising a trade union and fighting for wage revisions. He claimed that he returned India, where he worked until he was recognised by a police officer and arrested for the pending court cases against him. He claimed that he escaped from police custody and joined a group of Christians who were travelling to Australia for World Youth Day. 7 If returned to India, the appellant claimed he would be harmed by police and state authorities.

BEFORE THE TRIBUNAL 8 The Tribunal found that the appellant was not a truthful or credible witness, forming the view that he was unprepared to be tested on specific details and that he found it difficult to elaborate on those details of his claims. 9 The Tribunal did not accept that he was a member of the RYL as he had very little knowledge of the history, structure or aims of the RYL or the CPI(Maoist) and could not give any details on how he joined the RYL. It also found that the appellant's claim that he was a devout and committed Catholic was completely at odds with his claim that he was a member of the CPI(Maoist), a violent extremist group, and found his evidence in this regard to be highly implausible. As the Tribunal did not accept that the appellant was a member of any Maoist extremist group, it also did not accept that he had been arrested and detained by the authorities on any of the occasions outlined by him or for the reasons alleged. 10 The Tribunal rejected the appellant's claims to fear harm, noting that his evidence was lacking in detail and implausible and that he was evasive in answering the Tribunal's questions. The Tribunal also noted that the appellant had departed India on two occasions and returned on one, and that if he was a person of interest to the police, as he said he was, it did not believe this could have occurred. 11 The Tribunal also considered whether the appellant would suffer any persecution for being a member of the Latin/Roman Catholic faith, but concluded that the independent country information indicated that there are a large number of Catholics in Kerala, and there was nothing to suggest the existence of any state-based persecution or discrimination based on religion. 12 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention-related reason.

THE FEDERAL MAGISTRATES COURT 13 Before the Federal Magistrate the appellant claimed: 1. Jurisdictional error 2. Breach of procedural Fairness 3. Breach of natural Justice 14 The learned Federal Magistrate noted that the appellant had not particularised the jurisdictional error alleged and stated that it was not appropriate for the Court to make an assumption about what he intended. His Honour noted that the appellant's oral submissions in support appeared to be a request for impermissible merits review of the Tribunal decision and did not point to a jurisdictional error. 15 His Honour was unable to find any breach of procedural fairness because no particulars were provided. In response to the appellant's oral submissions regarding interpretation, his Honour was satisfied that the appellant was not prevented from presenting his case due to any failure in interpretation and found that the Tribunal had complied with its obligations pursuant to s 425 of the Migration Act 1958 (Cth) (the Act). 16 The learned Federal Magistrate found that the Tribunal decision was free from jurisdictional error and dismissed the application.

GROUNDS OF APPEAL 17 The notice of appeal raises the following grounds: 1. I am the citizen of India. 2. I have been given decision from RRT as well as Federal Magistrate Court, but they refused my demands for refugee protection. 3. I am eligible for protection visa. I am not at all satisfied with this decision. The Hon: Court did not consider my real incidents and actual matter. So I wish to appeal. 18 In argument before me, the appellant stressed that in view of the fact that he was exiled, it was not possible to obtain documents to support his claim nor could he request other people to do so as making such a request would expose others to a risk of being jailed. In response, counsel for the first respondent observed that the broader basis for the rejection of the claim by the appellant for refugee status had been lack of credibility as tested by other means including internal inconsistencies and lack of knowledge of the political party to which he claimed to adhere.

Ground 1 19 The Tribunal accepted that having seen the appellant's passport and hearing his evidence that he is a citizen of India. This ground taken alone does not justify any appeal.

Grounds 2 and 3 20 The second and third grounds raised by the appellant are largely a claim for a merits review of the Tribunal decision. To engage in fact-finding about the merits of the appellant's case is no part of the function of the court in dealing with judicial review of an administrative decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. The court must beware of turning a review of the reasons of the decision-maker into a reconsideration of the merits of the decision: Wu Shan Liang. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. 21 The appellant claims that the Federal Magistrate did not deal with his claims. His Honour records that at the hearing the appellant made oral submissions going to the merits of his claims and that there had been a mistake in the interpretation. His Honour found that: (a) the appellant had not particularised the jurisdictional error alleged and it was not appropriate for the Court to make an assumption about his intentions; (b) the appellant's oral submissions in support appeared to be a request for impermissible merits review and did not point to a jurisdictional error; (c) there was no breach of procedural fairness; (d) the appellant was not prevented from presenting his case due to any failure in interpretation; and (e) the Tribunal had complied with its obligations pursuant to s 425 of the Act. 22 No error of law can be found in the above reasoning of the Federal Magistrate in dismissing the application for judicial review of the decision of the Tribunal. Nor can any error of law be discerned in the Tribunal decision. The Tribunal properly identified the appellant's claims and discussed them with him during the hearing. 23 Throughout the hearing the Tribunal raised its concerns about his evidence with him in a sufficient way such that he was on notice that his credibility was at issue. The Tribunal's decision was based on its dissatisfaction with his evidence, which it found was lacking in detail, implausible and fabricated. 24 The Tribunal arrived at its findings, which were open to it, after a careful consideration of the evidence before it. Further, the Tribunal correctly set out the law at the start of its reasons for decision and correctly applied that law to its findings. No error is disclosed in the Tribunal decision. 25 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion are not shown to be in error.

CONCLUSION 26 The appeal will be dismissed. The appellant is to pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 26 November 2009 The Appellant represented himself.

Solicitor for the First Respondent: DLA Phillips Fox

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