SZOPV v Minister for Immigration and Citizenship

Federal Court of Australia|2011-08-11|Before: Bromberg J

INTRODUCTION 1 This is an appeal from a judgment of a Federal Magistrate (SZOPV v Minister for Immigration & Anor [2011] FMCA 243) in which the learned Federal Magistrate dismissed the appellant's application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate ("the delegate") of the first respondent ("the Minister") not to grant the appellant a protection visa. 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate who determined the appellant's judicial review proceedings is affected by appealable error. 4 In that context, this appeal deals with two main questions: (i) whether it was necessary for the Tribunal to have considered the degree of harm or the definition of persecution in s 91R of the Migration Act; and, (ii) whether the Tribunal failed to properly consider certain documents relied upon by the appellant. 5 For the reasons that follow, I have determined to dismiss the appeal because the appellant has not substantiated his contentions that the decision of the Federal Magistrate is affected by appealable error.

THE FEDERAL MAGISTRATE'S DECISION 14 By an amended application filed in the Federal Magistrates Court on 16 December 2010 the appellant sought judicial review on the following grounds: 1. The second respondent committed jurisdiction error by failing to address the applicant's claims in the way they were made. Particulars (a) The applicant stated in his protection visa application that he was an active member of BJP for last ten years and provided documents to the Second Respondent to corroborate his claims. (b) He stated that he was physically and mentally harassed by the SFI and CPIM members. (c) The Tribunal did not consider the way he claimed that as there was no alternative, the applicant remained in Tamil Nadu and made secret visits to his home country during the odd occasions, even though the perpetrators of the death of Ajay were subsequently arrested by the state police, the animosity and hatred towards the applicant from CPIM continued and death threats remained. 15 In the proceeding before the Federal Magistrate, the appellant also orally raised further grounds of appeal, each of which were dealt with and rejected.

GROUNDS OF APPEAL IN THIS COURT 16 On 12 April 2011, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal: 1. The Hon. FM Barnes failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring this aspect of persecution and harm in terms of Sec 91R of the Act. The Tribunal failed to observe this obligation amounted to breach of a Statutory Obligation. 2. The Court failed to consider that it was an error for the Tribunal to place no weight on the document and to assess the appellant's credit without assessing whether the substance of the document corroborated his claims. 17 At the hearing, the appellant was self-represented and assisted by a Malayalam interpreter.

Ground One 18 It appears that ground one is a new ground and therefore requires leave in order to be raised by the appellant. The relevant principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). 19 Ground one sets out an allegation that the Tribunal's decision was manifestly unreasonable because, in terms of what s 91R of the Migration Act requires, the Tribunal ignored the appellant's claims of fearing persecution and harm. Section 91R deals with the degree of harm and the nature of the persecution required for the Convention to have a protective application. The Convention to which I refer is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). 20 In determining whether the appellant had suffered persecution in India or had fled India for a Convention reason, the Tribunal considered all of the appellant's claims which were founded upon his alleged membership and involvement of the ABVP and the BJP. Having considered all of the appellant's claims, the Tribunal did not accept that the appellant had been the subject of persecution for a Convention reason because the Tribunal did not accept that the appellant's claims of persecution were credible. It was unnecessary for the Tribunal to focus upon the degree of harm or the definition of persecution in s 91R: SZNZH v Minister for Immigration and Citizenship [2010] FCA 1286 at [47] (Dodds-Streeton J). The appellant's reliance on s 91R is misconceived. 21 I am of the view that the first ground has neither merit nor any prospect of success. It is not expedient in the interests of justice that leave to raise it should be granted.

Ground Two 22 Although ground two does not expressly specify the 'document' referred to and the appellant was not able by submissions to clarify what he intended. I apprehend that what is being referred to is the document or documents, referred to in Particular (a) of the appellant's grounds before the Federal Magistrate. That particular raised the Tribunal's alleged failure to address documentary corroboration of the appellant's active involvement with the BJP. 23 The Federal Magistrate dealt with the appellant's claimed activity in the BJP at [38]-[40] of her reasons for judgment. The Federal Magistrate rejected the appellant's contention that his claim of active membership of the BJP for the previous 10 years had not been considered by the Tribunal. The Federal Magistrate noted that the Tribunal had regarded the appellant's evidence as to his involvement in the BJP to be inconsistent with the evidence given to the delegate and rejected his claim of political involvement because the claim was found to lack credibility. The Federal Magistrate noted that in coming to that conclusion, the Tribunal specifically considered the documents provided by the appellant in support of that claim. The Federal Magistrate was of the view that the Tribunal was not satisfied that the documents provided by the appellant that purported to support his claims contained truthful information. The Federal Magistrate therefore dismissed the contention that there was jurisdictional error on the part of the Tribunal because the Tribunal had failed to address that aspect of the appellant's claims. 24 The appellant's second ground of appeal makes a different challenge in relation to the documents in question to the kind of challenge that was made before the Federal Magistrate. Before the Federal Magistrate, the substance of the challenge was that the Tribunal had failed to address the claim of active membership of the BJP as substantiated by particular documents ("the documents"). The ground raised before me is not that the Tribunal failed to consider the claim, but that the Tribunal: (i) placed no weight on the documents in its assessment of the claim; and, (ii) assessed the appellant's credit without taking into account that the documents corroborated his claim. 25 This ground might properly be regarded as a new ground, however, I am prepared to treat it as sufficiently similar to the ground raised before the Federal Magistrate so as to not require leave. 26 The documents suggest that the appellant was an active member of the BJP for the past decade and was the election committee convenor of the Vettukadu ward in the Thiruvananthapuram constituency for the parliament election of 2009. The appellant claimed that, due to his BJP membership, he was brutally assaulted by the police twice in 2009, prior to and following the elections. The appellant alleges that he required surgery due to the first police attack and was jailed for five days after the second alleged attack. The appellant provided a police report in relation to the 6 April 2009 attack but it was in Malayalam and there was no indication to the Tribunal whether he was actually named in the report. 27 The Tribunal dismissed the appellant's claim of being persecuted by reason of membership or association with the BJP. 28 The Tribunal was satisfied that the documents did not contain truthful information. It was satisfied that the documents were untruthful because the appellant's evidence to the delegate as to his political involvement, was contradictory with the evidence he gave to the Tribunal and the assertions of his political involvement in the documents. 29 The Tribunal was satisfied that in his oral evidence to the delegate, the appellant said that he was last involved in political activities in 2003. In his evidence to the Tribunal, including by the assertions made in the documents, the appellant contended that he had been politically active in 2009. The Tribunal considered the contradictory evidence and was satisfied that the claim made before the Tribunal (including by the documents) of political involvement in 2009 was untruthful. 30 By the first part of the second ground of appeal, the appellant complains that the Tribunal was in error by failing to place any weight on the documents. The answer to that contention is straightforward. The Tribunal is entitled to place no weight on documents where it finds that the documents do not contain truthful information. That aspect of the challenge must be rejected. 31 Next, the appellant's second ground contends that there was a failure to assess the appellant's credit without the Tribunal taking into account the fact that the documents corroborated his claims. There is, however, nothing to demonstrate that the assessment made by the Tribunal of the appellant's credit did not take into account the contents of the documents. 32 On the question of the appellant's credit, and in particular whether the appellant's claims of political persecution in 2009 were credible, the Tribunal was entitled to weigh heavily against the appellant his failure to have asserted before the delegate that he was politically involved after 2003. That failure tended towards a finding that the appellant had not been politically involved after 2003. The documents asserted such an involvement and tended towards an opposite finding of political involvement in 2009. The Tribunal's reasons for decision indicate that this tension was resolved by the Tribunal determining that the documents did not contain truthful information. That analysis suggests that contrary to the appellant's contention, the documents were taken into account but were not accepted and thus were not helpful to the appellant, including as to the finding made as to his credit. Accordingly, this aspect of the appellant's appeal must also be rejected.

Ground Three 33 At the hearing, the appellant orally raised a further ground, similar to the ground pursued orally before the Federal Magistrate, that the Tribunal failed to provide him sufficient time to provide it with additional documents after the Tribunal hearing. 34 As referred to above at [18], the appellant needs leave to raise a new ground not raised in the Notice of Appeal. The Minister did not object to consideration being given as to whether leave be granted but contended that leave should be declined on the basis that the ground lacked merit and had no prospect of success. 35 The appellant made similar claims to those put orally before the Federal Magistrate. The appellant contended he could not get the documents to the Tribunal because of problems experienced by his wife in India in obtaining the documents. The Federal Magistrate dealt with this ground at [47] - [53] of her Honour's reasons for judgment. Her Honour found that the Tribunal had provided sufficient additional time to the appellant in response to his request. The Tribunal hearing occurred on 1 July 2011. On 13 July 011 the Tribunal wrote to the appellant under s 424A of the Migration Act inviting further comment or response by 5 August 2011. The appellant failed to respond to the s 424A letter or otherwise communicate with the Tribunal prior to the Tribunal's decision of 17 August 2010. 36 I can see no error in the way the Federal Magistrate dealt with this ground. On the material before me, it appears the appellant was provided additional time by the Tribunal to file supplementary documentation. He did not respond to correspondence from the Tribunal and he did not seek additional time. He did not alert the Tribunal as to any difficulties that he or his wife were experiencing in collecting additional documents. Accordingly, I find no merit in this ground. It is not expedient in the interests of justice that leave to raise this ground be granted.

CONCLUSION 37 For the reasons I have indicated, there is no merit in the appellant's grounds of appeal and the appeal must be dismissed. It follows that the appellant should pay the Minister's costs of the appeal. I will make orders accordingly. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Migration Act 1958(Cth)ss 91R, 424A, 474

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