SZNRF v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-17|Before: Tracey J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 22 October 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 15 May 2009: see SZNRF v Minister for Immigration & Anor [2009] FMCA 1119. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the first respondent") not to grant a protection visa to the appellant.

background 2 The appellant is a citizen of Ghana who arrived in Australia on 11 November 2008. On 14 November 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 11 February 2009. On 27 February 2009 the appellant applied to the Tribunal for a review of that decision. 3 The Federal Magistrate summarised the case put to the Tribunal by the appellant as follows. The appellant claimed to fear persecution on the basis of his religion. He claimed that he had been born and brought up a Muslim but that he had married a Catholic woman and had converted to Catholicism. This caused significant problems within his family particularly with his father who, in early January 2007, gathered the family together and told them that the appellant was the devil, and threatened to have the appellant killed ("the Fatwa"). The appellant claimed that he went into hiding thereafter with the help of the Catholic priest whose congregation he belonged to and by whom he had been baptised. He obtained a false passport and left Ghana.

REFUGEE REVIEW TRIBUNAL 4 The Tribunal found that the appellant was not a credible witness. The Tribunal considered that there were numerous deficiencies in his evidence concerning his departure from Ghana, which he was unable satisfactorily to explain. Given these deficiencies, the inconsistencies in his evidence, his lack of knowledge of Christianity, and the implausible nature of some of his claims, the Tribunal did not accept that the appellant had converted to Christianity or was forced to flee Ghana for fear of his life as claimed. 5 The Tribunal also found that, in any event, the appellant could have relocated to a large town such as Accra where, given the fact that the majority of the Ghanaian population is Christian, and given the fact that he had not been harmed by his father in the period of over a year since the Fatwa was announced, it was unlikely that he would be followed or harmed. The Tribunal also noted, from the independent country information available to it, that adequate state protection would be available. 6 The Tribunal was not satisfied that the appellant had a well founded fear of persecution. It affirmed the decision of the delegate not to grant the appellant a protection visa.

federal magistrates court 7 By application filed in the Federal Magistrates Court of Australia on 12 June 2009 the appellant sought judicial review of the Tribunal's decision. The application contained but one ground which read "Interpretation was not accurate". 8 The Federal Magistrate noted that the appellant speaks English that he toldthe Tribunal that in Ghana English is the first language, and that he had an interpreter with him for assistance if required at the Tribunal hearing. 9 After discussing the matter with the appellant, the Federal Magistrate surmised that the appellant's complaint concerned the evidence given by a witness, Father Ibrahim. Father Ibrahim told the Tribunal that the appellant's children had been baptised in Ghana. The appellant gave contradictory evidence. Given the evasive evidence of the witness, and the fact that the Tribunal could not confirm his identity, it gave the evidence no weight. 10 The Federal Magistrate referred to the fact that the Tribunal in its findings and reasons had stated: "... The Tribunal considers the applicant's evidence that his two children are not baptised to be inconsistent with his claim to have himself been baptised, especially given the evidence that their mother is a Catholic, and finds his explanation that he was too busy and had too many things on his mind to attend to the baptism of his children not to be credible." 11 The Federal Magistrate considered this to be an independent reason for the Tribunal not accepting that the appellant's children had not been baptised, and finding an inconsistency. His Honour was therefore satisfied that the Tribunal had, as it said it had done, ignored the evidence of Father Ibrahim where it appeared to be detrimental to that of the appellant. 12 Having found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the application.

appeal to this court 13 The notice of appeal to this Court was filed on 9 November 2009. The notice of appeal is worded as follows: "1. The Judgement of the Federal Magistrates Court in His Honor's Judgment Raphael given on 22nd October 2009. 2. The Tribunal erred in law in refusing to give me Protection that I am not a convert, from Islam to Christianity. 3. The Federal Magistrates also failed to find this error in His Honor's Judgment."

APPELLANT'S SUBMISSIONS 14 The appellant represented himself. When invited to explain the issues which he wished to raise on appeal he renewed his complaint about the accuracy of the interpretation of the evidence given to the Tribunal by Father Ibrahim. He also sought to reargue the merits of the Tribunal's finding that he could live safely in a part of Ghana away from the area in which his family lived.

CONSIDERATION 15 As the learned Magistrate found, the Tribunal's decision did not turn on any evidence given by Father Ibrahim. Its adverse appreciation of the appellant's credibility could be, and was, sustainable on other grounds. It had not relied on anything said by Father Ibrahim. 16 No reviewable error was made by the Tribunal in relation to the finding that the appellant could reasonably be expected to relocate within Ghana. This constituted a separate and independent basis for the decision to which the Tribunal came: see SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 at 50-1. The Tribunal's decision would not, therefore, have been set aside even if the Federal Magistrate had upheld the only ground which was raised before him.

disposition 17 The appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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