SZNPH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Scarlett FM: SZNPH v Minister for Immigration for Citizenship & Anor [2009] FMCA 788. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal), made on 15 April 2009 affirming the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa. 2 The appellant is a male citizen of India, born in 1978. He arrived in Australia on 9 July 2008. On 22 August 2008, he lodged an application for a protection visa with the Department of Immigration and Citizenship. 3 The delegate of the first respondent refused that application on 22 November 2008. On 18 December 2008, the appellant applied to the Tribunal for a review of that decision. The Tribunal sought more information from the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) in a letter of 2 March 2009. 4 On 14 May 2009, the appellant lodged an application, later amended on 6 July 2009, in the Federal Magistrates Court. On 20 August 2009, Scarlett FM dismissed the application. 5 The appellant lodged a Notice of Appeal with this Court on 9 September 2009. The grounds of appeal to this Court are said to be: 1. Jurisdictional error. 2. Breach of procedural fairness. 3. Breach of natural justice. 6 The Notice of Appeal goes on to say: Particulars to the grounds will be filed and served with the draft notice of appeal when required by this Court. 7 No further material has been received by the Court, and the appellant has not filed any written submissions. 8 The appellant's oral submissions today do not at all attempt to engage with the judgment of Scarlett FM. They are focused, as far as one can glean, on concerns about the proceedings before the Tribunal. As ultimately presented to the Tribunal, the appellant claimed to fear persecution in India for reason of his religion. He made various claims, one being that he was a Christian leader and martial arts teacher in Poovar, Kerala. He claimed to fear harm from Muslims after Christian clashes with Muslims concerning a road development in 2004. 9 He claimed there were riots between Christians and Muslims in 2005 in which the appellant participated, and that he hit a local police inspector who was a Muslim. 10 The appellant claimed that he was charged with an offence and was known as "Karate Johnny", although he managed to evade arrest. 11 He claimed he escaped various attempts by Muslims in 2006, 2007, and 2008 to injure him by throwing bombs at him, while continuing to evade police. He claimed there were outstanding charges against him when he came on a passport in another person's name for World Youth Day, and that the Muslims and the police are looking for him in India. 12 The Tribunal found that the appellant was not credible, and his claims untrue, noting the many implausibilities and inconsistencies in his claims, both as put to the Tribunal and as put to the delegate. As a result, the Tribunal did not accept any of the appellant's claims, nor did the Tribunal accept that he faced any fear of harm in Kerala simply for being a Christian. 13 In respect of the decision of the Tribunal, the conclusion that the appellant was not a credible witness and his claims untrue is, in the words of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], a finding of fact par excellence. 14 The Tribunal's findings of fact were open for the reasons which the Tribunal gave. As the High Court pointed out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, the Court cannot review the merits of the Tribunal's decision, and it was decided in Abebe v Commonwealth (1999) 197 CLR 510 at [137], that there is no jurisdictional error in the Tribunal making a wrong finding of fact. 15 The grounds which the appellant relied on in an amended application to the Federal Magistrates Court were dealt with seriatim by his Honour. 16 Scarlett FM held that none of the grounds of the amended application was made out. His Honour further found that the letter sent to the appellant by the Department of Immigration and Citizenship on 17 December 2008 acknowledging his application was not a request for additional information within s 424 of the Act. That decision by his Honour is correct, having regard to the judgment of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109, a decision handed down after his Honour gave judgment in the Federal Magistrates Court. 17 The Notice of Appeal lists three unparticularised grounds of appeal. They do not attempt, in any way, to engage with the decision of Scarlett FM. 18 The object of an appeal to this Court is to demonstrate error in the decision by the Federal Magistrate, not to reconsider the decision of the Tribunal. In the absence of particulars, the grounds of appeal are meaningless. Nothing at all has been demonstrated that there is any case to answer on appeal. 19 For these reasons, the appeal must be dismissed with costs. 20 The orders of the Court are that the appeal be dismissed, and the appellant is to pay the costs of the first respondent of and incidental to the appeal, which I fix in the sum of $3,000.00. I certify that the preceding twenty (20) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.