FEDERAL COURT OF AUSTRALIA

SZABF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 984

MIGRATION – no point of principle.

Migration Act 1958 (Cth)

SZABF V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NO. N 528 OF 2003

BEAUMONT J

16 SEPTEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

1                     This is an appeal from a judgment of Raphael FM, dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister to refuse to grant the appellant a protection visa.

2                     The appellant applied for the visa on 14 April 2000.  The delegate’s  decision refusing the visa was made on 30 May 2000.  The appellant applied to the Tribunal for review on 22 June 2000.  The Tribunal held a hearing on 15 August 2001 and handed down its decision on 10 October 2002.

3                     In his application, the appellant claimed to fear persecution by reason of his political opinion in Tamil Nadu in India.  He claimed that his uncle and cousins were members of the Liberation Tigers of Tamil Eelam (“LTTE”), and that the appellant had been arrested and mistreated as a suspected LTTE supporter in 1991, 1998 and in August 1999.  He claimed to fear both the LTTE because of his knowledge of their secrets, and the police in Tamil Nadu because of his suspected support for the LTTE.  He claimed that between August 1999 and March 2000 (when he left India for Australia on his own passport) he was in hiding at a friend’s house in his village.

4                     However, the Tribunal found that the appellant’s claims were not credible, noting in particular his demeanour when giving evidence, and the content of his responses to questions from the Tribunal.  The Tribunal regarded the appellant’s claims to have been able to repeatedly secure his (and his uncle’s) release from detention by paying bribes as implausible if, in truth, he were genuinely suspected of LTTE involvement.  Moreover, the Tribunal regarded the appellant’s account of living in hiding in his village as implausible.  The Tribunal considered that if the appellant were, in fact, genuinely suspected by the police of LTTE involvement, he would not have been released as he claimed, without being charged, and rejected his claim to fear the police.  As to his fear of the LTTE, the Tribunal found that the appellant’s evidence was evasive, inconsistent, confused, unconvincing and lacking in cohesion and credibility.  The Tribunal considered that if the LTTE were genuinely interested in harming the appellant, they would have done so.  The Tribunal regarded the appellant’s claims of inquiries of his family by the police and LTTE after the appellant came to Australia as fabricated.  The Tribunal thus concluded that the appellant did not genuinely fear harm from either the police or the LTTE in India.

5                     It appears then that the appellant failed in his visa application because the Tribunal took a particular view of the facts, specifically its strongly expressed finding that the appellant was not credible.  So long as the Tribunal’s credibility findings were reasonably open to it, no error is demonstrated in suchconclusions.  In my opinion, the Tribunal’s findings were reasonably open for the reasons it gave, including the implausibilities in the appellant’s claims thatthe Tribunal detailed, and its observation of his demeanour when giving evidence.

6                     Before Raphael FM the appellant claimed that the Tribunal had denied him procedural fairness because of the length of time it took to make its decision, given that as a result the Tribunal decision became a “privative clause decision” within the meaning of s 474 of the MigrationAct 1958 (“the Act”).  In my opinion, Raphael FM correctly dismissed this claim, noting that any delay in the giving of the Tribunal’s decision could not itself amount to a breach of procedural fairness.  The appellant also sought, in essence, meritsreview from the Court.  However, there is no error of law in making a wrong finding of fact, and the Court cannot review the meritsof the Tribunal’s decision.  In my opinion, Raphael FM was correct to conclude that there was no jurisdictional error in the Tribunal’s decision.

7                     The Notice of Appeal to this Court does not properly particularise any error in the decision of Raphael FM, and again appears to seek merits review.

8                     As there is no arguable jurisdictional error in the Tribunal’s decision, it is strictly unnecessary to discuss the effect of s 474 of the Act.  The distinction between jurisdictional and non‑jurisdictional errors remains for the purposes of considering the application of s 75(v) of the Constitution.  In my opinion, the Tribunal was plainly addressing the correct question, and the appellant’s complaints seem at most directed to the weight to be given to evidence before it, and this cannot be a jurisdictional issue.

9                     Although the appellant was unrepresented both before Raphael FM and before this Court, it does appear that, at some stage, he has received advice from a party with a legal qualification or background.  In this context, reference should be made to four documents filed by the appellant in support of his appeal, as follows:

10                  First, in his notice of appeal to this Court filed on 29 April 2003, the appellant described his “grounds” of appeal thus:

‘Error of law, mixed law and fact relating to the decision of the Refugee Review Tribunal – committed by the Federal Magistrate’s Court.’

11                  The appellant then sought these orders:

‘1.        A declaration that the decision of the Federal Magistrate’s Court, in dismissing appeal is invalid and of no effect.

2.                  Order that the Refugee Review Tribunal, erred in its decision.

3.                  Remittal to the Refugee Review Tribunal, of the matter in appeal, for reconsideration, freshly constituted.

4.         Costs.’

12                  As has been said, in my opinion, no error of law, or of mixed law and fact on the part of the Tribunal or in the case of Raphael FM has been demonstrated here.

13                  Secondly, by a document filed on 20 May 2003, the appellant clarified his earlier “ground” of appeal by submitting this:

‘1.        The RRT failed to act on the proper principles into consideration of the merits of the case

2.         The decision involved an error of law being an incorrect application of the law to the facts as found by the person who madethe decision

The Federal Magistrate rejected the appeal, with costs.

This appeal is from that decision on the following grounds:

1.         The learned Magistrate at para 11 of his decision stating “I am unable to find any indication of jurisdictional error reviewable under s.39B of the Judiciary Act 1903 (Cth) from the statement of the applicant, his written submissions or the decision of the Tribunal. I dismiss this application.”  The Magistrate at paras 9 & 10 respectively, of his decision referred to 2 cases as precedents for his decision. Namely

Mansfield J in Kamal v Minister for Immigration [2002] FCA 818 and McHugh J in Re Minister for Immigration; Ex parte Durairajasingham [2002] 168 ALR 407

The decision of the learned Magistrate is an error in law.

2.         There are other legal precedents on judicial review of RRT decisions and reasoning by which decisions are arrived at which will beresearched and submitted wrongly.

3.         Allegation of bona fide bias against the Appellant’s claims by the learned Magistrate

4.         On the evidence placed before it the RRT should have arrived at the decision that the Applicant is a refugee under the Geneva Convention of 1953 and the Refugee Protocol of 1963 and that he feared persecution at the hands of the Indian Police and the LTTE;  the “real chances” of “serious harm” are real and imminent if the Applicant were to return to India.  This is supported by independent Country information.’

14                  Apart from the quite unsupported allegation of “bias”, these submissions are no more than a paraphrase of the appellant’s previous arguments which, as has been said, Raphael FM correctly, in my opinion, rejected.

15                  Third, on 12 September 2003, the appellant filed the following further submission:

‘1.        As soon as I received the decision of the Federal magistrate’s Court, rejecting my appeal, I tried to contact my wife Mrs. Mujitha Abdul Azees in Adirampattinam, Tamilnadu, India, to inform her of my status and fate.  I found this impossible as I was informed by a friend that my wife had relocated to an unknown location due to reasons of security.  This occurred about six months ago, after the delivery of the Federal magistrate Court in my matter.

I am thoroughly traumatised as my wife and children are unable to communicate with me.  My friend, Mohamed (Rajan) had been murdered by person/persons unknown.  His remaining 2 brothers came to my house in search of me.  My friend informed me that they had then gone and threatened my wife and children of dire  consequences.  As a result, due to fear of her life and that of my children, she had disappeared and had relocated to an unknown place.

In the light of the above- due to the trauma caused to me and my wife and children of the unreasonable rejection of my application for asylum, I kindly request you to accede to my request and remit my case for reconsideration by the Refugee Review Tribunal- freshly constituted.’

16                  In my opinion, none of these assertions constitute any ground of appeal for present purposes.

17                  Finally, yesterday (15 September 2003) the appellant filed another written submission in which he addresses a number of the findings of the Tribunal and, it appears, consequentially findings of Raphael FM.

18                  Specifically, the appellant contends (without developing at that stage):

‘1.00

The Tribunal has been unreasonable in finding that

a.      I did not face persecution by either the LTTE or the Indian Police or a real chance that I would face persecution from these 2 sources if I were [to] return to India.

b.      I am not a credible witness’

19                  After citing several parts of the Tribunal’s reasons, the appellant quotes this passage from the reasons, emphasising some parts, as follows:

‘The  Applicant’s evidence that he eventually discovered late in the piece that his uncle was indeed supplying medical provisions to the LTTE is most implausible in the light of his earlier evidence of such suspicions and activities.  The Tribunal does not accept that, if the Indian police suspected the Applicant of LTTE connections, he would have been released after each claimed detention without being charged and gaoled instead of short detentions as he has claimed.  The Tribunal is not satisfied that the Applicant has experienced police detentions and mistreatment nor that he had the alleged contact with the LTTE that he testified about.  The Tribunal rejects his testimony of a fear of persecution from the Indian police.’

20                  The appellant then submits:

‘2.00

With regard to the lines underlined [bolded], even though these are matters of fact which cannot be interfered by the Federal Courts, yet I formally and vehemently state the following:

a.      The Indian Police suspected my collaboration with the LTTE.  That is why I was incarcerated several times by the Police.  If they had not formally charged me it does not change the scenario as I was in and out of remand jail.’

21                  The submission continues (with emphasis in one area) as follows :

‘The Tribunal finds the Applicant’s evidence of the alleged threats from the LTTE, based on their fear that he may be in a position to disclose information to the police of their operations, to be thoroughly unsatisfactory and unreliable.  The Tribunal finds that the Applicant was evasive and inconsistent in his testimony and gave an account of threats from the LTTE that was confused, unconvincing and generally lacking in cohesion and credibility.  The Applicant ...  admitted in his testimony ...  that he knew of no immediate threat of harm to himself.  On the country information the Tribunal finds that, if the LTTE had any concerns about the Applicant’s trustworthiness, such as the Applicant suggested, they would have acted directly and quickly against the Applicant or his relatives.  The Tribunal is not satisfied that it can rely on his evidence on any of the central elements of his claims.  The Tribunal rejects the Applicant’s testimony of a fear of persecution from the LTTE’

22                  The appellant next contends:

‘3.00

a.      It is a rule of thumb that the RRT has adopted in coming to this opinion, even though it’s [sic] stand is not corroborated by evidence.’

23                  Having cited further extracts from the Tribunal’s reasons, the appellant contends:

‘4.00

The RRT decision that I did not fear convention-related persecution is unreasonable, as I have established that due to imputed political opinion, I was persecuted

Relating to the findings of the Honourable Federal magistrate’s Court, which is quoted below, it is submitted that his Honour erred in upholding the decision of the RRT, which in turn upheld the decision of the Delegate.’

24                  These written submissions were restated orally by the appellant at today’s hearing.

25                  In my opinion, there is nothing in this further submission (which goes on to pick up again the earlier grounds of appeal) that takes the appellant’s case any further.  The issue, in my view, remains factual, and was reasonably open to the Tribunal as a question of fact and did not go to jurisdiction.

26                  In my view, Raphael FM was correct in holding that no case for judicial review had been demonstrated, and in thus dismissing the application.

27                  The appeal is dismissed, with costs.

Associate:

Dated:              19 September 2003