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[2008] FCA 1352
Federal Court of Australia
2008-09-04
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 This is an appeal from a Federal Magistrate delivered on 28 March 2008 (WZAMS v Minister for Immigration & Anor [2008] FMCA 438). By that decision his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 13 November 2007. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of India. He arrived in Australia on 11 May 2007 on an 'Entertainment visa (sub-class TE-420)' which was valid until 14 May 2007. On 14 May 2007 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs (the Department). A delegate of the first respondent refused the application on 5 June 2007. On 2 July 2007 the appellant applied to the Tribunal for a review of that decision under the Migration Act 1958 (Cth) (the Act). On 13 November 2007 the Tribunal affirmed the delegate's decision.
THE APPELLANT'S CLAIMS 3 The appellant claims to fear persecution in India because of his political and social activities. He also claims that people have tried to kill him several times and he would be killed if he were to return to India for reason of his political opinion.
BEFORE THE TRIBUNAL 4 The Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention). 5 On 2 August 2007, the appellant filed a statutory declaration setting out a number of claims regarding his political involvement in India and incidents of violence and threats that had occurred due to his political activities. 6 The Tribunal accepted that the appellant is a national of India noting that it had proved extremely difficult to draw out the appellant's claims during the hearing and that questions were repeatedly put and that he provided inconsistent evidence. 7 The Tribunal found that if the appellant had feared persecution because of his political opinion, he would have left Kerala State well before the time that he did (2005). 8 The appellant's allegation of outstanding false charges in India was found, by the Tribunal, to be a fabrication to enhance his application. 9 The Tribunal was not satisfied that the appellant's alleged apprehension of danger or death from escaped prisoners and his fear of persecution upon their release was 'an essential or significant reason' for a Convention related fear of persecution. The Tribunal found that the appellant could safely relocate and travel to another location in India 'and by doing so, avoid a real chance of harm'. 10 As to the appellant's credibility, the Tribunal found that the appellant was not a witness of truth and that he 'was prepared to embellish and/or entirely fabricate material parts of his claims'. Due to its findings that he was not a witness of truth, it was 'satisfied that there are reasonable grounds to reject all his material claims'. 11 The Tribunal therefore affirmed the decision of the delegate not to grant to the appellant a protection visa.
ON REVIEW BY THE FEDERAL MAGISTRATES COURT 12 By an amended application and affidavit in support filed with the Federal Magistrates Court on 6 March 2008, the appellant claimed that the Tribunal did not accept all his factual claims; made a number of mistakes and should have invited the appellant to make comments on the information which was adverse to him and which appeared in the Tribunal decision; was unfair and biased towards him; did not understand his claims, did not explain to him why his application lacked information and only accepted his claim that he was a citizen of India. 13 Before the learned Federal Magistrate, the appellant made oral submissions also stating that he had been hampered in putting his case to the Tribunal because he had had difficulty in obtaining legal advice and in being able to speak to someone who could speak Malayalam. However, his Honour noted in his reasons that the appellant 'conceded, when asked, that the Tribunal had provided an interpreter in the Malayalam language'. 14 In relation to the appellant's first complaint that the Tribunal did not accept all his claims, the learned Federal Magistrate noted that the Court was unable to provide the appellant with a merits review of the Tribunal decision. 15 His Honour observed that the second limb of the appellant's claims appeared to be that the Tribunal breached the requirements of procedural fairness and that s 422B of the Act applied. His Honour observed (at [36] WZAMS [2008] FMCA 438) that the delegate's decision had set out very clear reason's for rejecting the appellant's application and that the Tribunal was similarly not satisfied on the basis of information provided by the appellant, even after further information had been provided. His Honour therefore concluded that there was no breach of procedural fairness. 16 The third limb appeared to his Honour be an allegation of failure by the Tribunal to comply with the requirements of s 424A of the Act. Noting that the Tribunal was not required to put to the appellant any doubts which it might have regarding an applicant's evidence (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]), his Honour nevertheless noted that the Tribunal had forwarded a s 424A letter to the appellant pointing out the perceived lack of detailed information he provided and requesting further information. It had discharged its obligations under the section. 17 To the extent that the appellant alleged bias on the part of the Tribunal, his Honour was unable to discern any evidence in support of such an allegation. 18 The learned Federal Magistrate concluded that there was no evidence to support the allegation that the Tribunal did not understand the appellant's claims. The Tribunal was also under no obligation to explain why the information the appellant provided was insufficient or to make out the appellant's case for him: see Prasad v Minister for Immigration and Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. As to the complaint that the Tribunal did not explain why it did not accept his claims, his Honour found that the Tribunal's decision provided clear reasons and complies with the requirements of s 430(1) of the Act. 19 His Honour was unable to discern any jurisdictional error in the Tribunal's decision and dismissed the application for review.
GROUNDS OF APPEAL 20 The notice of appeal raises the following grounds: '1. Jurisdictional error 2. Breached (sic) of proceeding 3. Denial of natural Justice' 21 At the hearing of the appeal before me the appellant stressed that he had received threats of violence including threats of murder from prisoners of the Tamil Nadu jail. Further he submitted that he is a member of 'BJP Worker' and was threatened with murder by CPM workers. He complained that the Tribunal did not pay proper attention to those threats. He complained that the threats were not treated seriously by the Tribunal and he wished to have the opportunity to go back to the Tribunal to emphasise these particular threats and to attempt to produce additional evidence which would support those threats having occurred. 22 Counsel for the Minister, Mr Hannan pointed out that the threats of that nature had never been raised before. In particular, counsel referred to [19] of the Federal Magistrate's decision when the summary of the evidence of the Tribunal was listed under four headings, namely, (a) political activities in Trevandrum District, Kerala State; (b) prisoner capture; (c) relocation; and (d) credibility. The learned Federal Magistrate cited the Tribunal decision in which the Tribunal had said: He did not provide apparently meaningful responses to questions put (some questions were repeatedly put and the interpreter appeared to have stressed such questions on occasion, prior to a meaningful response being provided). He provided inconsistent evidence and his evidence (at times) appeared to have been embellished, (if not entirely fabricated). 23 Counsel also referred to the initial statutory declaration sworn by the appellant in July 2007 in support of his application which had not raised the issue of threats of murder made by prisoners. 24 In my view, while the point was expressed slightly differently in this appeal, there was some consistency with the statutory declaration when the appellant said: Meanwhile in a morning daily I came across a news that in "Tamilnadu" state which is our neighbouring state some persons attacked the prison authorities and escaped in the prison and killed a prisoner by breaking and opening the cell door and chopped off the head of a prisoner and took his head along with them and abandoned the head some few kilometres away, these assailants were financially well and sound and they have high political influence. They did this with the help of officials and in conspiracy with the prison superintendent who was heavily bribed by the assailants. After that they escaped to Kerala and came to a place near to my close relative house and the Tamilnadu police published their photos in newspapers and reward offered to those who identify of capture or gives information about them. It was at that time these assailants incidentally came to in front of me and I identified them from the injury on his right hand and from injury on the face of another one. I immediately informed the police and when the assailants tried to escape I along with my friends overpowered them and I handed them over to the police. At that time these assailants to offered me a handsome amount if I am not informing and handing them over to the police. I went to the police station and police officer of Tamilnadu police headed by an Inspector General of that zone came to take these assailants. As earlier said assailants had lexus with that Inspector General and on that time itself these assailants openly declared and threatened me that when they are released from prison they will came and kill me and my entire family. And these became the headlines of all the dailies, on the next day. And the news was mostly about me. It was reveled (sic) that these assailants were planning to escape to "Sri Lanka" and for that they had silent consent of the politicians and police officers. And they want to eliminate me and my family because they were captured only because of me, otherwise they could have escaped to Sri Lanka. (emphasis added) 25 However these issues raised by the appellant go to a review of merits. On reviewing the Tribunal's reasons it is clear that it has fully considered the arguments advanced by the appellant and did not accept them. 26 On the evidence and inconsistencies and on the Tribunal's ability to form a view as to the reliability and credibility of the appellant, it was entitled to reach that conclusion.
ANALYSIS 27 Although the grounds of appeal appear to be directed to the Tribunal's decision they will be treated as being a complaint that the learned Federal Magistrate failed to detect the three bases upon which the decision should be set aside. 28 No specific argument was advanced on the hearing in support of the three briefly stated grounds of appeal. The only argument advanced in the hearing has been set out above. 29 As to the first ground of appeal, no jurisdictional error was argued. I am unable to discern any jurisdictional error. Both the reasons of the Tribunal and the reasons of the Federal Magistrates Court are comprehensive and detailed. To the extent that arguments in the Federal Magistrates Court may have reflected a complaint of jurisdictional error, those arguments were addressed by the learned Federal Magistrate.
Jurisdictional error 30 As to jurisdictional error, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, Nicholson and Selway JJ following Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The Tribunal was not satisfied that the appellant was a refugee under the Convention. The findings of fact including the credibility findings were matters uniquely within its jurisdiction and not within the jurisdiction of the Federal Magistrates Court or this Court. Neither the Federal Magistrates Court nor this Court has jurisdiction to engage in a merits review. No argument has been advanced to support the ground of jurisdictional error and I conclude that it is not made out.
Breach of or denial of procedural fairness 31 Assuming that the second ground of appeal should be read as a complaint of denial of procedural fairness, it is well established that a failure to accord procedural fairness will constitute jurisdictional error: WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [64]. However, s 422B of the Act provides as follows: 422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. 32 The Tribunal was required only to comply with the statutory expression of procedural fairness prescribed in s 424A of the Act. There is no indication on the arguments raised of any failing on the part of the Tribunal to so comply. It is clear on the Tribunal's reasons that it put to the appellant issues and concerns that troubled the Tribunal in accepting his account. The Tribunal has discharged its responsibilities at law and the learned Federal Magistrate was correct in reaching that conclusion.
Denial of natural justice 33 As to the third ground, being a denial of natural justice, at the hearing before me no argument was advanced to support that ground. The same considerations apply as raised in the previous ground. It is clear that s 424A(1)(a) of the Act is not engaged merely because the Tribunal takes into account inconsistencies in the material presented to it: SZBYR 235 ALR 609 at [15] and [22]. Of course it is well established that the Tribunal is not obliged to make the appellant's case for him: Prasad 6 FCR 155 at 169-170. 34 I consider that no breach of natural justice or denial of natural justice has been made out. The appellant was given apparently, the opportunity to present his claims at the Tribunal with the assistance of an interpreter. Even though the Tribunal appears to have endeavoured to assist the appellant in the end, the onus remains on the appellant to make out the factual basis of his application.
APPLICATION FOR TIME 35 The appellant applied for an order extending time by 6 months for payment of the sum of $5,000 by way of costs which he was ordered to pay in the Federal Magistrates Court. The application was unopposed. Time is extended for a period of 6 months.
CONCLUSION 36 However, each of the three grounds having failed, the appeal will be dismissed and the appellant will be ordered to pay the costs of the first respondent to be taxed or agreed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Associate: Dated: 4 September 2008 The Appellant represented himself
Solicitor for the First Respondent: Australian Government Solicitor
WZAMS
Minister for Immigration and Citizenship