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[2010] FCA 1234
Federal Court of Australia
2010-11-12
Besanko J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Magistrates Court on 7 July 2010. On that day, the Federal Magistrates Court dismissed an application by the appellant for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The Tribunal had decided to affirm the decision of a delegate of the Minister for Immigration and Citizenship not to grant a Protection (Class XA) visa ("protection visa") to the appellant. 2 The appellant arrived in Australia on 30 July 2008, and he applied for a protection visa on 11 September 2008. A delegate of the Minister for Immigration and Citizenship refused his application on 25 November 2008. The appellant applied to the Tribunal for a review of the delegate's decision on 19 December 2008. 3 A brief description of the basis upon which the appellant claimed refugee status is as follows. The appellant is a national of India and he comes from the Tamil Nadu region. The appellant said that his problems started after the Boxing Day tsunami affected his village in India. He said that he lost his family home and his siblings. The government decided to allocate new homes to various persons and he was chosen to receive a new home. The appellant said that leading politicians wanted homes for their dependants and that this led to a dispute between those politicians and himself. He said that there was a fight in which his uncle was stabbed and he (the appellant) escaped after being chased by the politicians. He moved to Chennai but was unable to escape the politicians. He said that the politicians will kill him. He said that they were torturing his parents. 4 The appellant claimed that if he returns to India he will be killed or attacked by the politicians of the ruling party which is the Dravida Munnetra Kazaghan ("DMK"). The appellant claimed that he was a member of the All India Anna Dravida Munnetra Khazagan ("AIADMK") which is the opposition party and that he was a noted person in that party. 5 In support of his claims the appellant provided the following documents to the Tribunal: 1. Photocopies and accredited translations of original death certificates for his brother and his sister indicating that they died on 26 December 2004; 2. A photocopy and an accredited translation of a membership card of the AIADMK for the appellant indicating that he had been a member since 31 July 1998; and 3. A photocopy and an accredited translation of an order for the construction of permanent houses and allotments indicating that the appellant as the head of the family was allotted a house at a location in his village. 6 The Tribunal accepted that the appellant's brother and sister died as a result of the tsunami and that he became a member of AIADMK in 1998. The Tribunal accepted that the appellant and his family were allocated a house after the tsunami. However, the Tribunal found that the appellant was not a credible witness. The Tribunal was not satisfied with his explanations as to certain matters, found that his evidence was inconsistent with independent information and found that he had changed his evidence. The Tribunal member said: The applicant's changing evidence, his explanations and lack of response also added to the view that he is not a witness of truth. 7 The Tribunal concluded that the appellant had fabricated his claims that he was persecuted in India by the DMK, and it was not satisfied that the applicant was persecuted or discriminated against because he was a member of the AIADMK or because of that he had been harmed in the past, "by reason of having been a member of AIADMK, for having received a house after the 2004 Boxing Day tsunami or because of association with his uncle, who was a labour union member or for any other Convention related reason". 8 The Tribunal found that there was no real chance that the applicant would be persecuted for a Convention reason if he were to return to India now or in the reasonably foreseeable future. 9 The appellant advanced three grounds in support of his application for constitutional writs. They were as follows: 1. The Tribunal constructively failed to exercise its jurisdiction.
The applicant provided documents to the Tribunal to corroborate his claims. In particulars [sic] the applicant provided [a] death certificate of his brother and sister, membership card of the AIADMK party, evidence of allotted house in his name. The Tribunal failed to engage in an active intellectual process in respect of those documents. The Tribunal ultimately gave no weight on the basis of its credit findings. It was an error for [the] Tribunal to place no weight on the documents without engaging in an active intellectual process as [to] the contents of the documents [sic]. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the document corroborated his claims. 2. The Tribunal's decision was unjust and was made without taking into account the full gravity of applicant's circumstances and the consequences of the claim. 3. The applicant satisfy [sic] the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. 10 As to the first ground, the federal magistrate said that it was clear that the Tribunal had regard to the documents provided by the appellant, namely, his membership of the AIADMK and his allocation of a house after the tsunami. The federal magistrate noted that the Tribunal did not accept that the appellant would face harm in India by reason of either of those matters. She noted that death certificates of the appellant's brother and sister by themselves did not corroborate the appellant's claims. 11 The federal magistrate also noted that no transcript of the Tribunal hearing had been provided to the Court, nor had the appellant put forward any evidence to suggest that the Tribunal's decision record was not accurate. In those circumstances, the federal magistrate accepted as accurate the Tribunal's summary of the oral evidence given by the appellant and the exchanges it had with the appellant at the hearing. The federal magistrate concluded that following the delegate's decision the appellant was aware or should have been aware that his credibility was in issue. The federal magistrate said that in any event the Tribunal clearly put to the appellant its concerns about his credibility and independent country information that was inconsistent with his claims. The federal magistrate concluded that the Tribunal's findings were open to it on the evidence and material before it, including its adverse credibility findings, and that the credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J). 12 As to the second ground of the application, namely, that the Tribunal's decision was unjust and was made without taking into account the full gravity of the appellant's circumstances and the consequences of the claim, the federal magistrate noted that this was a bare assertion by the appellant and was unsupported by particulars, evidence or submissions. Her Honour rejected the ground. She said that a fair reading of the Tribunal's decision made it clear that it considered carefully and in detail the appellant's claims and had regard to the appellant's circumstances if he were to return to India. She said that the Tribunal's decision record made it clear that its findings, including its adverse findings, were not attended by doubt. 13 As to the third ground of the application, namely, that the appellant satisfied the four key elements of the Convention definition, the federal magistrate noted, as with the second ground, that this ground was not supported by particulars, evidence or submissions. Her Honour noted that no error, factual or legal, was particularised and none was apparent on the face of the Tribunal's decision. She rejected the third ground of the application. 14 The notice of appeal to this Court contains two grounds. The first ground is that the federal magistrate erred in not upholding the first ground of the appellant's application for constitutional writs. The second ground is that the federal magistrate erred in holding that the Tribunal's decision was a privative clause decision. 15 The appellant appeared before this Court in person. He had the assistance of an interpreter. He did not file any written submissions. He made brief oral submissions in support of his appeal. 16 I reject the first ground of appeal against the federal magistrate's decision. I think her Honour was right for the reasons which she gave. The Tribunal found that the documents were authentic and made the findings I have already identified (at [6]). The documents established certain aspects of his story, but not the critical aspects. On those matters and in particular with respect to the appellant's claim that he had been persecuted by the DMK in India, the Tribunal found that the appellant was not a credible witness. The reasons of the Tribunal suggest that it analysed the appellant's evidence carefully and that the conclusions it drew about his veracity were open to it. There is no reason to think that the Tribunal did not engage in an active intellectual process when considering the appellant's claims and his credibility (Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ; Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140) or that it did not give proper, genuine and realistic consideration to the merits of the case (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J). 17 As to the second ground of appeal, nothing was put by the appellant in support of the ground, nor was it particularised in any way. I have read the Tribunal's reasons carefully and there does not appear to me to be any ground upon which it can be said it has committed a jurisdictional error. 18 The appeal must be dismissed. I certify that the preceding nineteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
SZOIO
Minister for Immigration and Citizenship