SZOHJ v Minister for Immigration and Citizenship

Federal Court of Australia|2010-11-19|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Raphael delivered on 21 July 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 8 March 2010. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa ('the protection visa') to the appellant.

BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 15 February 2009. On 25 March 2009 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for the protection visa on 5 June 2009. On 3 July 2009 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to fear persecution in his home state of Tamil Nadu in India on the basis of his political views. The appellant claimed to be a member and office bearer of the Dravida Munnetra Kazhagam ('the DMK'), a prominent political party upholding the interests of the state of Tamil Nadu. The appellant alleged that on 28 December 2007 he was attacked by political opponents as he walked home from a party meeting because he was walking with a person involved in the Babri Mosque incident. The Court notes that the Babri Mosque incident refers to a series of events in India in 1992 which involved the destruction of a Mosque in the northern Indian city of Ayodhya which had resulted in widespread rioting and violence in India. The appellant claimed that he made several reports to the police but was given no assistance.

THE TRIBUNAL'S DECISION 4 The Tribunal did not accept that the appellant was a member of, or worker for, any political party in India, or that he was implicated in any attack or act of violence on 28 December 2007. In support of this finding, the Tribunal observed that the appellant's version of the attack, as well as his claims relating to his political activities, contained a large number of inconsistencies. For example, the membership certificate he submitted in support of his claims referred to the All India Dravida Munnetra Kazhagam ('the AIDMK'), whereas the appellant claimed to be a member of the DMK. At the hearing before the Tribunal such discrepancy was pointed out to the appellant, who responded that they were the same organisation. Contrary to his claim, independent country information indicated that the two were not one and the same. 5 The Tribunal further supported its findings by reference to discrepancies in the appellant's account of his assault in December 2007. The appellant claimed before the Tribunal to have been attacked on 28 December 2007 for reason of his political membership. However the membership certificate that the appellant had supplied to the Tribunal in support of his application listed his date of admission to membership of the AIDMK as 4 January 2008, that is, a date after the alleged attack. 6 The Tribunal was therefore satisfied that the appellant was not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, 'the Refugees Convention', or 'the Convention'), and affirmed the decision of the delegate.

APPLICATION TO FEDERAL MAGISTRATES COURT 7 By Application dated 31 March 2010 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. Such application contained the following grounds: 1. The decision made by RRT is jurisdictional error

8 Given the lack of particularisation of the above grounds and after having regard to the Tribunal's decision, Raphael FM was unable to find any jurisdictional error in the Tribunal's decision and accordingly dismissed the appeal. 9 On 10 August 2010 a Notice of Appeal from the decision of Raphael FM was filed in this Court.

APPELLANT'S SUBMISSIONS 10 The appellant attended the hearing before this Court on 3 November 2010 and provided oral submissions with the assistance of an interpreter. The appellant claimed that the Tribunal had made mistakes and that he himself had also made mistakes in that his application had been prepared with the assistance of a person who did not speak his language. As a result the appellant claimed that the application misrepresented the political party to whom the appellant belonged. He claimed that there was in fact a distinction between the AIDMK of which he was a member compared to the DMK. He claimed that the Tribunal should have taken a 'kind attitude' in respect of the apparent inconsistencies in his application and that had he been afforded the opportunity to do so he could have provided documents in relation to the distinction between the two parties. The appellant claimed that he is now in a position to do so. 11 The appellant claimed that he would have severe problems if he returned to India and would find it very difficult to return and lead a normal life. He claimed that because of his own weaknesses, being his lack of knowledge, lack of English and lack of procedural knowledge, he was disadvantaged and that as such he should be afforded another opportunity to present his case in the Tribunal.

FINDINGS 12 The claims made by the appellant at the hearing do not align coherently with the contents of the Notice of Appeal. For the purposes of this judgment, the Court will address such claims separately before addressing the contents of the appellant's Notice of Appeal.

Claims Made at the Hearing 13 Before the Tribunal the appellant had stated that the AIDMK and the DMK were one and the same. Such statement was made by the appellant after it was drawn to his attention by the Tribunal that in his application for the protection visa he had claimed to be a member of the DMK but that the documentation provided to the Tribunal in support of his claim described him as being a member of the AIDMK. 14 At the hearing before this Court, the appellant claimed such discrepancy arose due to difficulties between the appellant and the person who assisted him in preparing his application. The appellant had made a similar claim before Raphael FM, alleging that a Tamil‑speaking Sri Lankan had assisted him in completing his protection visa application and that such person had incorrectly written DMK instead of AIDMK. 15 Raphael FM found that if the Tribunal had fallen into confusion (which his Honour did not accept) such confusion resulted from information provided by the appellant himself to the Tribunal. His Honour noted that the appellant was afforded the opportunity to resolve the confusion and also referred to the observations of the High Court in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007)232 CLR 189 at [53] in which the Court observed that if an applicant before a Tribunal has been affected by bad or negligent advice, such event cannot vitiate the decision of the Tribunal. 16 The appellant's claim that the discrepancy in his evidence regarding the use of the acronyms AIDMK and DMK arose from a mere translation error must be rejected. Such finding is made on the basis that the appellant made the express claim before the Tribunal that the DMK and the AIDMK were one and the same. His claim before this Court that his application was incorrectly completed to refer to his party as being the DMK as opposed to the AIDMK contradicts his prior express claim that the parties were one and the same. The Court notes that the appellant's visa application indicates that he speaks, reads and writes English. The appellant also holds two university degrees, including a Masters degree. 17 The Court accordingly rejects the above claims made by the appellant at the hearing and will now address the issues raised by the Notice of Appeal.

New Grounds in the Notice of Appeal 18 The Minister has submitted that Ground 1 and 2 of the Notice of Appeal were not raised before the Federal Magistrate. In order to raise such grounds leave is required, and before a grant of leave can be made it is necessary for the Court to consider the merits of the proposed ground: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24]. 19 Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] outlined the relevant considerations to be addressed when an application is made to raise a ground of appeal not raised below. Such considerations include the prospects of success of the ground and whether any explanation exists as to why such ground was not previously raised. See also SZKCQ v Minster for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. 20 In accordance with the above principles, the Court will consider whether leave should be granted to rely on Grounds 1 and 2 of the Notice of Appeal.

Ground 1 21 The first ground of the Notice of Appeal is as follows: 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. 22 No particulars have been provided for the first claim of Ground 1. The 'adverse information in the possession of the Tribunal' is not identified. Accordingly it is impossible to provide any meaningful response to such assertion. 23 As to the second claim made in Ground 1, namely that the learned Federal Magistrate erred because his Honour 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, such claim merely invites this Court to undertake impermissible merits review: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392. 24 Given that the Court finds such ground to have no prospects of success, leave to rely on it is refused.

Ground 2 25 The second ground of the Notice of Appeal is as follows: 2. The Tribunal's decision was in breach of section 424A(1) of the Migration Act 1958 (Cth) Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review. (b) The Tribunal did not disclose the information in accordance with s 424A(1). 26 The Tribunal found numerous inconsistencies with regard to the appellant's evidence and concluded that he was 'an unreliable witness' and that his claims were not genuine. The Tribunal was not required, pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'), to put to the appellant its doubts concerning the credibility of his allegations. 'Information' for the purposes of s 424A of the Act does not include doubts, inconsistencies or the absence of evidence: see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1 at [18]. The Tribunal's conclusions on such aspects arose from information the appellant provided orally to the Tribunal and in writing to the Department. Material from such sources does not constitute 'information' to which s 424A(1) of the Act has application by virtue of s 424A(3)(b) and s 424A(3)(ba) of the Act respectively. 27 Similarly the independent country information relating to the DMK and the AIDMK to which the Tribunal had regard fell within the exception provided by s 424A(3)(a) of the Act. It was not required to be disclosed: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 at [66]-[71]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. 28 Accordingly, no error on the part of the Tribunal or the Federal Magistrate has been disclosed under this proposed ground. Given that the Court finds such ground to have no prospects of success, leave to rely on it is refused.

Ground 3 29 The third ground of the Notice of Appeal is as follows: 3. The Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error. 30 Without particularisation, it is difficult to make any meaningful determination in respect of such ground. The Court notes that the findings made above at [13]-[17] are also applicable to such ground. After consideration of the reasons of the Tribunal, the Court can find no basis for the claim that the appellant was not afforded procedural fairness and accordingly rejects Ground 3 of the Notice of Appeal.

Ground 4 31 The fourth ground of the Notice of Appeal is as follows: 4. The Tribunal made denial of natural justice. Because it failed to provide further opportunity to appear before the tribunal. 32 Under the final ground of appeal, the appellant claims that he was denied natural justice because the Tribunal did not provide a further opportunity for him to appear before the Tribunal. No particulars are provided. As s 422B of the Act has application, the Court is left to speculate upon the provision of Division 4 of Part 7 of the Act to which the appellant appeals. 33 The Court is satisfied that the Tribunal put the appellant on notice of the issues under review such as his credibility, his membership and political activities in respect of the DMK and the distinction between the DMK and the AIDMK. 34 The Tribunal informed the appellant that it would consider any additional material he could provide before the making of its decision, and that opportunity was availed of, as is evidenced by the Tribunal's own decision which records its receipt of a submission from the appellant on 14 September 2009, namely 19 days after the hearing. The appellant also undertook to provide further documents within seven days being a 'First Information Report' (to the police) and medical records, but no such documents were ever received by the Tribunal. 35 The Court is unable to find any error under such ground and accordingly this ground is dismissed. 36 It follows that the appeal must be 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.

Migration Act 1958(Cth)ss 422B, 424A

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