SZOFV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Magistrates Court. On 1 September 2010 the Federal Magistrates Court dismissed the appellant's claim against the decision of the Refugee Review Tribunal on 22 February 2010 which affirmed a decision of the first respondent's delegate not to grant the appellant a protection visa (SZOFV v Minister for Immigration [2010] FMCA 720). 2 In the notice of appeal filed on 16 September 2010 the appellant identified a single ground of appeal to the effect that the Federal Magistrates Court failed to take into consideration that the Tribunal committed jurisdictional error "by failing to address the [appellant's] claims in the way they were made". The Federal Magistrates Court rejected this claim on the basis that: - (i) the Tribunal was aware of, and described, the way in which the appellant allegedly carried out conversions to Christianity (at [34]-[35]), (ii) the lack of a specific reference to the way in which the appellant allegedly carried out conversions to Christianity in its "findings and reasons" (as opposed to its description of the appellant's "claims and evidence") did not disclose a failure to consider that material (at [35]), (iii) the Tribunal's consideration of the way in which the appellant allegedly carried out conversions to Christianity was subsumed into its more general finding that the appellant was not involved in conversions (at [35]-[36]), and (iv) given the more general finding it was not necessary for the Tribunal to deal expressly with every aspect of the appellant's claims to have been involved in conversions (at [37] citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]). The appellant did not identify any matter capable of supporting a conclusion that the Federal Magistrate was in error in dismissing this ground of challenge to the Tribunal's decision. 3 The appellant raised other grounds of challenge to the validity of the Tribunal's decision in oral submissions. It is apparent that these grounds were raised before the Federal Magistrates Court also and dealt with in that Court's reasons. 4 Accordingly, the appellant complained that he had not been provided with a Malayalam interpreter at the interview before the Department. He was provided with a Hindi interpreter instead and could not communicate effectively. The Federal Magistrates Court considered and rejected this claim at [62]-[64] noting that the appellant was provided with a Malayalam interpreter at the hearing before the Tribunal. I agree that the provision of a Hindi interpreter at the Departmental interview could not support a conclusion of jurisdictional error by the Tribunal. The Tribunal was vested with the capacity to undertake a merits review. It provided the appellant with a Malayalam interpreter as requested for that purpose. That is sufficient to dispose of any claim of legal error by the Tribunal. 5 The appellant complained that he had only three days to apply for a protection visa and thus had insufficient time to obtain evidence to support his case before the Department. The Federal Magistrates Court rejected this claim at [60]). Although the appellant had only three days to make his application to the Department, that application was lodged on 24 August 2009. Before that the appellant spent six months in New Zealand. The Department did not interview the appellant until 27 October 2010. The hearing before the Tribunal occurred on 18 January 2010, some five months after the appellant applied for a protection visa. As the Federal Magistrates Court said at [57]-[59]: [57] The applicant raised an issue about the availability of certain evidence in support of his claims. The obligation to make his case is on the applicant. The Tribunal recorded at the start of the hearing that when asked if he had any further documents to submit, the applicant said he did not have any documents. There is nothing in the Tribunal's account of the hearing to indicate that the applicant asked for the opportunity to put further material before the Tribunal. [58] Insofar as the applicant referred specifically to a certificate in relation to his injuries, it appears from his oral submissions that he was suggesting that he did not have such a certificate with him at the time of the Tribunal review, although he now has it. As indicated, there is nothing in the Tribunal reasons for decision or elsewhere in the material before the court to indicate that the applicant sought to put such further material before the Tribunal. On a number of occasions the Tribunal referred to the applicant's claims at the hearing about attacks on him and injuries and hospitalisation, but there was no reference to the possibility of any such further evidence being put before it. [59] There is also no evidence to support the applicant's claim that he informed the Tribunal either that he had a certificate, that he could provide one or that he sought additional time to get a certificate. No jurisdictional error is established on this basis. 6 These reasons disclose no error. 7 During the appeal the appellant identified that he had now received some of the documents supporting his claim. The appellant tendered an invoice from the Kerala Institute of Medical Sciences relating to his admission to hospital on 31 July 2008 and discharge on 1 August 2008 and said he expected the remaining documents to be received within the next week. Leaving aside the fact that the appellant's claim before the Department was that he had been attacked on 20 July 2008 and hospitalised for two months, the appellant's attempted reliance on these further documents is an invitation to this Court to undertake an impermissible merits review and, insofar as potentially relevant to the issue of jurisdictional error by the Tribunal, is answered by the reasons of the Federal Magistrates Court at [57]-[59] as quoted above. The appellant's opportunity for merits review of the refusal of his application for a protection visa was the hearing before the Tribunal. If, as the Federal Magistrates Court found, the appellant's negative answer to the Tribunal's question whether he had any further documents to submit (at [8]) should be understood as meaning the appellant had no such documents at that time, the obligation to make his case was on the appellant. As part of that obligation the appellant had the opportunity to request more time to obtain documents. As the Federal Magistrates Court found, there is no evidence suggesting that the appellant did so. It was not for the Tribunal to make the appellant's case for him. In these circumstances the fact that the appellant says he now has relevant documents available is immaterial. This Court cannot undertake merits review and the further documents available provide no basis to set aside the Tribunal's decision. 8 The Federal Magistrates Court otherwise dealt comprehensively with the appellant's claims. There is no basis for challenge to its reasons in that regard. 9 Counsel for the first respondent noted that one paragraph of the Tribunal's reasons (para 27) appears to relate to another matter and has nothing to do with the appellant. This is so but it does not disclose any jurisdictional error by the Tribunal. The extraneous paragraph cannot be inferred to have had any effect on the Tribunal's detailed consideration of the appellant's claims and evidence in support. 10 For these reasons nothing in the available material discloses any basis for the appeal against the order of the Federal Magistrates Court dismissing the appellant's application for review of the Tribunal's decision. The appeal thus must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.