FEDERAL COURT OF AUSTRALIA

SZALV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1370

SZALV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD699 OF 2004

BENNETT J

14 OCTOBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                                 The appellant appeals from the decision of Driver FM made on 23 April 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 11 March 2003 and handed down on 3 April 2003.  The Tribunal affirmed a decision of the delegate of the Minister refusing to grant the appellant a protection (Class XA) visa.  In his amended notice of appeal the appellant seeks a writ of certiorari to quash the Tribunal's decision, a writ of mandamus to compel the Tribunal to consider his application according to law, a declaration to set aside the judgment of the Federal Magistrate and costs.

2                                 In his amended notice of appeal, the appellant claims that Driver FM erred in failing to find that the Tribunal's decision was affected by jurisdictional error and that the Tribunal ‘erred in law amounting to jurisdictional error in determining whether the harm suffered by the applicant amounted to persecution’.

3                                 The claims are particularised as follows:

1.                  ‘The Tribunal fail to address the claim that the applicant was persecuted because he is a Muslim businessperson. In 1995 during the Elephant God festival his three Business cites are ransacked by Hindu fundamentalist in INDIA’

2.                  I am the target of Hindu National Front. The Tribunal did not accept my claim without any reasons and information.

3.                  My genuine claim did not investigate by the RRT members.

4.                  RRT made decision with the bad faith.’

4                                 Before the Tribunal the appellant, a citizen of India of Muslim faith, claimed that he had a well founded fear of persecution on the ground of religion.  The relevant findings of the Tribunal as to the facts of this case are set out in the respondent's submissions:

‘The Tribunal found that the appellant’s evidence was not plausible, in particular his claim at the hearing that his two and half year old child died of fright when an enemy pulled a knife on the family. He was not able to explain any religious motives behind his business rival’s alleged actions. The Tribunal concluded that the business difficulties lacked detail and were unclear, and in any event did not establish persecution on the ground of religion. Moreover, it would be reasonable for the appellant to relocated within India. The tribunal concluded that the appellant was not a person to whom Australia had protection obligations.’

The appellant’s claims and the Tribunal's findings in relation to the claims are also set out in the reasons of Driver FM.

5                                 In particular, the Tribunal found that the appellant was not a credible witness saying: ‘…at his hearing he contradicted his earlier claims on every point put to him.’ The appellant failed to make the necessary connection between the claimed persecution and his Islamic faith.  The Tribunal said, ‘these difficulties, if indeed they existed, do not appear to be Convention related.’

The appellant was not able to explain satisfactorily how the competition between his firm and Mangalam had any religious overtones.  The Tribunal did not accept that the appellant's ability to give evidence was impeded by the claimed recent death of his child who, the appellant claimed, had been killed by business opponents.  The Tribunal did not accept that a child under three years could have died of shock in the circumstances described.  The Tribunal identified a number of contradictions in the appellant's claims and supported its reasons with country information which indicated that even if the appellant's account of his persecution were truthful he would have recourse to the legal system and that he could have relocated. 

6                                In Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at [67], McHugh J said of Tribunal findings as to credibility:

`A finding on credibility is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.´

7                                 While the Tribunal's reasons in the present case were short, reasons were given as to why the appellant was not believed.  Federal Magistrate Driver rejected the appellant's submissions that the Tribunal decision was affected by bad faith, bias, jurisdictional error and the absence of procedural fairness.  Federal Magistrate Driver found that ‘there was no evidence in the present case that the Tribunal member failed to make an honest and genuine attempt to carry out the review function’.

8                                 The appellant sought to rely on the principle in Muin v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 207 (‘Muin’) relating to procedural fairness but Driver FM found that he failed to ‘bring the case within the special circumstances of Muin’.  There was no evidence of an actual state of mind of the Tribunal member which would constitute bias, nor was there any evidence of error of law constituting jurisdictional error.  Federal Magistrate Driver found that the Tribunal made no error in reaching its factual findings and dealt with each integer of the appellant's claims. 

9                                 Before me, the appellant has appeared in person assisted by an interpreter.  At the hearing, he handed up a document entitled “Written Argument by Applicant”.  I will deal with that written argument before dealing with the matters raised in the written notice of appeal. The written argument sets out a number of grounds and I have asked the appellant to explain the content of each ground to the extent that he can.  He informed me that the written argument had been written by a student friend.

1.         ‘The Tribunal did not consider the applicant as a refugee despite many evidentiary proofs.’ 

10                              The appellant said that he gave oral evidence before the Tribunal that some of his documents were burnt. The Tribunal did not accept his claims.

2.         ‘The procedures that were required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed.’ 

11                              The appellant was unable to give any details of any such procedures. 

3.         ‘The Tribunal ignored the merits of the claim, it did not take into consideration the verdict from India Country Report.’

12                              In explanation, the appellant said that if he goes back to his country he will encounter many problems.  He commented that other people from India had been accepted as refugees, that he was afraid to go back to India and that the Tribunal had not phoned India to try to find out more information about him.  Much of this complaint relates to questions of fact. Factual findings are matters for the Tribunal and the findings of fact were available on the evidence.  The Tribunal had no obligation other than to consider the claims made by the appellant, as presented. The Tribunal was not obliged to conduct its own investigation or to seek out evidence for itself from India (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’).

4.         ‘The Tribunal did not act in good faith in regards to my claims.’

13                              The appellant was unable to give any details or particulars of this claim. Accordingly, this assertion should be rejected.

5.         ‘The Tribunal misjudged fate of the applicant's claim.’

14                              In explanation, the appellant said that the Tribunal did not interview him properly or give him sufficient time to present his case.  No other particulars were given.  I note that the appellant had some 11 months from the time of notification of the proposed Tribunal hearing to the hearing itself.  There are no particulars or evidence of what further material could have been adduced.  In any event, the appellant said he did not tell the Tribunal that he had not had sufficient time.  I see no error in the Tribunal's approach in this regard.

6.         ‘The Tribunal made a number of errors to decide the fate of the applicant's claim.  The applicants were not (and still are not) represented by the solicitor.’

15                              The appellant was unable to give any particulars of this ground and it should be rejected.

7.         ‘The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts s 39B Judiciary Act 1903 as per Guadron J in Abebe v Commonwealth (1992) 162 ALR 1 at 33 paragraph [1001]. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief.’

16                              The appellant was unable to give any particulars of this ground and no ground for jurisdictional error on this basis is made out.

8.         ‘I am a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958 but the authority has not considered my claims and I have been refused to remain in Australia permanently. The RRT has failed to investigate my claims, specifically the grounds of persecution, in India. Therefore, the tribunal’s decision was affected by actual bias constituting judicial error.’

17                              When asked for an explanation the appellant gave none in relation to paragraph 8 but said he was prepared to abide by the decision of the court.

9.         ‘Recent High Court Judgment Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003) and SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003) are very relevant of my case.’

18                              No explanation of this ground is given. I do not see how in the circumstances those cases apply to justify a finding of jurisdictional error in the present case:

10.       ‘The very recent High Court of Australia Judgment “Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal. The Judgment is very relevant of my RRT decision of my protection visa application.’

19                              There is no evidence or suggestion as to how the case of Muin applies to the appellant's case.

11.       ‘My oral evidence did not consider and Federal Magistrates did not find jurisdictional error.’

20                              The appellant was unable to point to any such evidence and no jurisdictional error was established. 

21                              The appellant raises the following claims in his amended notice of appeal:

Particular 1: Whether the Tribunal failed to address the appellant was persecuted because he was a Muslim business person and during the elephant god festival his three business sites were ransacked by Hindu fundamentalists

22                              The Tribunal did consider the appellant's claims that his businesses were ransacked and that during the Elephant God Festival his three business sites were ransacked but found that the details were unclear and that if the difficulties existed they did not appear to be Convention related.  While the Tribunal accepted that a sign saying “buy Hindu” may have been erected near the appellant's business, the Tribunal was not satisfied that this amounted to persecution in the Convention sense.  The Federal Magistrate's decision on this issue is not affected by any error of law.

Particular 2:  Whether the Tribunal erred in rejecting reasons and information that the appellant is a target of a Hindu National Front

23                              Before the Tribunal the appellant claimed that he had been attacked by the Kerala Hindu Front.  The Tribunal considered this claim and asked him about another statement that he made that he was attacked by the Hindu National Front.  The appellant told the Tribunal that ‘one of his employees told him’.

24                              The respondent contends that, as to this claim, no particular factual error is identified.  The Tribunal did not believe the appellant's claims.  It was clearly open to the Tribunal to make credibility findings and the Tribunal gave sufficient reasons for such findings. The Tribunal clearly considered the appellant’s claim that he was persecuted by the Hindu National Front, but did not accept it.  The appellant has not established an error with regard to this aspect of Federal Magistrate Driver's reasoning since no error has been proved on the part of the Tribunal.

Particular 3:  Whether the Tribunal erred in not investigating genuine claims

25                              The respondent submits that the appellant did not request the Tribunal to obtain evidence from a witness or seek further time to obtain evidence.  In Re Ruddock; Ex parte S154 of 2002 (2003) 201 ALR 437 at [57] – [58] Gummow and Hayne JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions.  In SGLB at [1], [19], [43] and [124], Gleeson CJ and Gummow and Hayne JJ, with Callinan J reaching a similar conclusion, held that the provisions of the Migration Act do not impose upon the Tribunal a duty to inquire.  I accept the respondent's submissions on this aspect.  The Tribunal is under no obligation to make out the appellant's case.  The appellant's claim that the appellant had such a duty is not supported by any principle of law.  I can find no error on the part of the Tribunal in respect of this aspect.

Particular 4:  Whether the Tribunal made its decision in bad faith. 

26                              As I have already noted no evidence has been put to me which supports this claim. Federal Magistrate Driver found nothing in the reasons of the Tribunal which indicated that the Tribunal member failed to make an honest and genuine attempt to carry out the review function. I can find nothing in the Tribunal's reasons to support the appellant's claim of bad faith.  Accordingly, this claim must fail. 

            Conclusion

27                              No error has been established in Driver FM's decision to refuse the appeal from the Tribunal.  The Tribunal considered the evidence put to it by the appellant and reasoned its decision on the basis of his evidence.  The Tribunal's decision rested principally upon its finding that the appellant was not a credible witness and that much of his evidence was implausible.  Federal Magistrate Driver rightly concluded that it was not open to him to disturb such findings.  The appellant has not established any grounds for setting aside this decision. 

28                              The appellant has not established any error on the part of Driver FM and therefore there is no jurisdictional error on the part of the Tribunal.  Accordingly, the decision falls within the description of a privative clause decision in s 474 of the Act.  It follows that the appeal should be dismissed.

29                              The order of the court is that the appeal is dismissed with costs. 

Associate:

Dated:              8 November 2004