FEDERAL COURT OF AUSTRALIA

SZJMU v Minister for Immigration and Citizenship [2007] FCA 1344

SZJMU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1028 OF 2007

MANSFIELD J

20 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay to the first respondent costs of this appeal.

3.                  Costs of the first respondent be fixed in the sum of $2,800.

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

REASONS FOR JUDGMENT

1                     The appellant arrived in Australia on 13 April 2006 and shortly afterwards applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  That application was refused by a delegate of the first respondent on 23 May 2006.  The decision of the delegate was then affirmed by the Refugee Review Tribunal (the Tribunal) on 7 September 2006.  The appellant sought an order quashing the decision of the Tribunal in the Federal Magistrates Court but his application was unsuccessful.  On 24 May 2007, a Federal Magistrate dismissed his application, hence this appeal.  As with the Federal Magistrate, this Court does not have the power or the function of looking at all the material that was before the Tribunal and re-deciding the merits of the case.  On this appeal, the Court’s task is to determine whether the Federal Magistrate erred in dismissing the application to that Court and to determine whether the Tribunal made an important error of law in the way it decided the application that it was considering.

2                     I have used the loose description “an important error of law” to convey to the appellant in a very coarse way what is meant by the expression “jurisdictional error” as explained by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.  Consequently, it is important to look to the decision of the Tribunal and the reasons for the decision of the Tribunal and to see whether those reasons demonstrate such an error on the part of the Tribunal.  The appellant, through his notice of appeal, his written submissions and his oral submissions, has had the opportunity of identifying what such an error might have been.  In addition, as he was represented before the Federal Magistrate, I have the benefit of the Federal Magistrate’s recital of the asserted errors at that point in the proceedings.  I have also carefully considered the Tribunal’s reasons myself. 

3                     Before dealing with the matters variously raised by the appellant, I shall note briefly the Tribunal’s reasons for reaching its conclusion.

4                     The appellant is a national of India and before he came to Australia, operated a factory business, apparently involving the production of chemical food preservatives. One of his employees was killed by accident in the course of that work.  The business was not insured.  There was some explanation for the circumstances of the accident having to do with the deceased worker’s personal habits but it is not necessary to refer to that in detail.  The Tribunal also accepted that, following the death of that employee, the appellant tried to negotiate with the father of the deceased worker to pay some compensation but he was unable to do so.  That part of the appellant’s claims which the Tribunal did not accept followed those events.  The appellant claimed, when he made his application for a protection visa, that he had been threatened by the father of the deceased employee; the father being a person of some political significance.

5                     He claimed that his factory had been set on fire and that the father of the deceased worker had hired professional criminals to torture, kidnap or kill him.  He closed his factory due to fear of such assaults and hid in India for a time and then went to Thailand.  He was there for about 10 months before he came to Australia but while in Thailand, also had short trips to Malaysia and Singapore.  When the matter came to the Tribunal, as the Tribunal noted, those claims were significantly refined or embellished.  In particular, the appellant told the Tribunal that the factory of which he was the boss had two groups of workers involved in different political parties.  One was the Dravida Munnetra Kazhagam (the DMK), which he had previously identified as the party in which the deceased worker’s father was a person of significance.  The other party was the Marumalarchi Dravida Munnetra Kazhagam (the MDMK).

6                     The appellant said to the Tribunal that he was a supporter and quite recently had become an active and strong member of the MDMK and had become the assistant youth organiser for his district.  Consequently, he clothed the existence of his fear as he reported it to the Tribunal in that political environment of DMK persons seeking revenge for the death of that worker from him as an individual active in the MDMK.  The second thing which the Tribunal regarded as new was that the appellant identified to the Tribunal that the father of the deceased worker was a Mr Sathiaseelan, a prominent politician.  The third thing which the Tribunal identified as new and significant information was that the appellant claimed to have been threatened by Mr Sathiaseelan on three occasions, that the appellant had spoken to an uncle who had intervened with Mr Sathiaseelan on his behalf and that the uncle had shortly thereafter been stabbed to death, prompting the appellant to go into hiding.

7                     Finally, and more generally, the appellant described in considerably more detail, in response to questions from the Tribunal, the extent to which he had been threatened and had managed to avoid contact with those who had come to his home or to his factory “many times” looking for him to harm him.  The Tribunal asked the appellant for his explanation for having made those new claims at the Tribunal hearing rather than when he first applied for a protection visa.  The passage of its reasons in which it addresses those explanations is in the following terms:

The applicant has provided a number of explanations for the making of the new claims at the review stage, namely communication/language difficulties with the previous migration agent, not knowing anyone upon arrival in Australia, lack of awareness that he had to mention his political problems, fear of disclosure, not wanting to tell his secrets to strangers and not fully-understanding confidentiality provisions.  Whilst the Tribunal appreciates that those explanations appear to be reasonable, however, when they are considered in the context of the significance of the new claims, they are neither persuasive nor convincing.  The claims that the applicant has been a strong member and a supporter of the MDMK since its inception in 1996, that in September 2004, he was appointed by the MDMK as assistant youth organiser for his district of Mayiladuthurai, that Mr Sathiaseelan was the worker’s father, that Mr Gnanaskaran was a distant uncle, and that Mr Gopalasamy is a relative, are significant new claims.  The Tribunal has carefully considered the applicant’s explanations which the Tribunal finds unpersuasive and unconvincing.  The Tribunal has also considered the applicant’s knowledge of various principles relating the MDMK and inconsideration [sic] of the evidence as a whole the Tribunal is not satisfied that this means that he was involved in the MDMK.  The Tribunal is of the view that it would not be difficult to acquire such knowledge.

8                     As is there set out, the Tribunal regarded those explanations as unpersuasive and unconvincing.  That was one of a number of reasons why the Tribunal regarded the appellant as not having reliably reported to the Tribunal the extent to which, if at all, he had been threatened and feared harm as a result of the death of the worker.  The second reason also appearing in that passage is that the Tribunal did not think that the appellant had such a knowledge of the MDMK as to indicate an extensive involvement with that organisation.  The third reason was that in the course of his evidence the appellant had described his uncle as having been stabbed in 2004, whereas the employee who was killed in the factory accident had died in April 2005, so there was some disconformity between what the appellant had told the Tribunal at one point about that incident and at another point.

9                     The Tribunal also regarded it as implausible that Mr Sathiaseelan, a powerful political figure, would have hired a killer to harm the appellant, but in the period of time that the appellant remained in India no harm had come to him.  The Tribunal also had regard to the appellant’s description of the threats which he had received, it regarded them as general and vague.  It also had regard to his explanations for why he had been unsafe in Thailand, Singapore or Malaysia, and regarded those explanations as unconvincing and adding further doubts about the veracity of the appellant’s claims.

10                  It concluded that it did not accept that the appellant had ever been a member or supporter of the MDMK in the following passage of its reasons:

In light of the above comments and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has fabricated a number of claims in order to bring his claims within a Convention ground(s), which reflects poorly on his credibility.  For those reasons, the Tribunal does not accept that the applicant has ever been a member and/or a supporter of the MDMK, or that he was ever involved in any activities of the MDMK, or that he is related to Mr Y Gopalasamy, or that he is related to Mr Gnanaskaran who was stabbed to protect the applicant, or that he was ever appointed as assistant youth organiser, or that he was ever a youth worker in the MDMK, or that he was the secretary of the Youth Front, or that in his factory there were two groups, one supporting the DMK and another supporting the MDMK, or that people gathered against him at his factory and hindered his work, or that the deceased worker was the main person supporting the DMK group at the factory, or that Mr Sathialseelan had hired a killer, or that there was any enmity between the applicant and Mr Sathiaseelan, or that there were any plans to kill the applicant which led him to run away many times.

11                  Although it accepted, as I have said, that it would have been natural for the family of the deceased worker to have been upset about his death it did not accept that that family took steps to persecute the appellant, that they hired a professional killer, that “many leaders put case against me”, that the father ever threatened the appellant, that he complained to the police and that they took no action, that the father of the deceased set fire to the factory, that the father’s gang went to Thailand searching for the appellant, or that he had to hide in Thailand.  The Tribunal concluded that it was not satisfied that the appellant had suffered convention related serious harm at the hands of the deceased family or that there was any real chance of such harm occurring to him in the reasonably foreseeable future.  In fact, the Tribunal’s conclusions indicate that it did not accept that there was any real risk of the appellant suffering any harm from the family of the deceased worker, or from the DMK connections to that family if he were to return to India.

12                  Its reasons indicate that it did not confine its consideration to the political beliefs or attributed political beliefs of the appellant but also had regard to whether he was a member of a particular social group which might be persecuted if he were to return to India.  It has, therefore, considered each of the claims which the appellant made to the Tribunal and properly addressed them as it is required to do (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.

13                  I have considered each of the grounds of appeal and each of the matters raised by the applicant in his written submissions.  It was apparent in the course of oral submissions that the applicant had played little part in the preparation of those documents and could not explain the points they sought to raise.  As the helpful contentions of counsel for the first respondent indicate, the notice of appeal does not raise any basis for identifying jurisdictional error on the part of the Tribunal in any cogent way.  The grounds of appeal are conclusionary and without detail.  I shall deal with them briefly.

14                  I am unable to discern any error of law, “jurisdictional error”, or want of procedural fairness in the way the Tribunal conducted its hearing, nor am I able to discern that the Tribunal committed any legal or factual errors which might demonstrate jurisdictional error on its part.  The third ground of the notice of appeal is obviously misconceived.  It relates to the relocation principle explained in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, but that was not a matter raised in the Tribunal’s reasons or addressed by the Federal Magistrate.

15                  The next two grounds of appeal assert injustice on the part of the Tribunal by failing to take into account the full circumstances and what seems to be an attempt to re-argue the Tribunal’s decision on the merits by complaining about the weight it placed on certain evidence or the weight it did not place on other evidence.  I do not see any error on the part of the Tribunal in any of those respects.

16                  The final ground of appeal is also clearly misconceived, it refers to a lack of procedural fairness in the “Muin” sense.  Muin v Refugee Review Tribunal (2002) 190 CLR 601 is a decision based upon its particular facts.  There is nothing which the appellant has pointed to which could enliven the principles of procedural fairness to be applied in this case as they did in Muin 190 CLR 601.  The applicant’s written submissions have the same general quality of being assertive and without particularity.  Like most of the grounds of appeal they demonstrate an attempt to challenge the merits of the Tribunal’s decision.  As I explained to the appellant, that is not a course which is available to the Court or to the Federal Magistrates Court (see A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56.

17                  In a slightly different way, the written submissions simply assert matters with which I have already dealt, other than a complaint about non-compliance with s 424A of the Act.  The appellant, understandably, did not know what s 424A of the Act meant or provided.  The Tribunal in fact gave to the appellant a notice under s 424A of the Act on 21 August 2006 and received a response.  Nothing has been identified as demonstrating that that notice was inadequate in any relevant respect.  I have read the notice and in my view there is no deficiency in that notice. 

18                  The Federal Magistrate, as has been the case on this appeal, was confronted with several grounds of alleged jurisdictional error on the part of the Tribunal and dealt with them sequentially.  Those grounds, although expressed a little differently before the Federal Magistrate, are the same as the grounds to which I have already referred.  As I have said, I do not think they demonstrate jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate. 

19                  The overriding impression I have from the appellant’s contentions is that his concern is principally that the Tribunal did not accept his claims because it regarded them as new claims or as substantially new claims without having a good reason for not having made them at an earlier point in time.  He said on this appeal that the Tribunal should have accepted his explanation for why he had changed to or supplemented what he had said in his application for a protection visa.  That matter was also argued at some length before the Federal Magistrate.  The assessment of the reliability of the appellant’s claims as ultimately made to the Tribunal was a matter for the Tribunal.  Its reasons for not accepting those claims as presented to it do not demonstrate jurisdictional error on its part.  They were rational and based upon the material which it had before it.  It is not within the power of the court simply to disregard the findings of fact which the Tribunal made in that regard. 

20                  For those reasons, in my view, the appellant has not shown that the Federal Magistrate erred or that the Tribunal committed jurisdictional error in reaching its conclusion.  It follows that this appeal must be dismissed.  The appellant must pay to the first respondent the costs of the appeal.

21                  The first respondent has applied for costs of the appeal to be fixed in the sum of $2,800.  Having regard to the amount of work which has obviously been undertaken in preparing the appeal book and in the preparation of submissions and retaining and briefing counsel and for counsel fees, in my view the amount claimed is a reasonable amount and I will fix the costs of the first respondent in the sum of $2,800.

Associate:

Dated:         28 August 2007