FEDERAL COURT OF AUSTRALIA

SZJZO v Minister for Immigration and Citizenship [2007] FCA 1757

SZJZO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1086 OF 2007

COLLIER J

16 NOVEMBER 2007

BRISBANE (HEARD IN GRIFFITH)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the decision of Smith FM delivered 29 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

Background

2                     The appellant arrived in Australia from Pakistan on 25 May 2006. On 21 June 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 27 July 2006. On the 22 August 2006 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa the appellant claimed to have well-founded fear of persecution as a result of his political opinion. The appellant claimed that he departed Pakistan because of his membership of an anti-government party, “Muslim League (Namaz Sharif Group)”. The appellant claimed he was arrested in 1999 and imprisoned for one month before being released. He also claimed that he was harassed and arrested many more times subsequently. The appellant claimed that if he were to return to Pakistan he would be arrested by the government and beaten because his party manifesto contradicts that of the ruling party. The appellant claimed that the government would lodge false charges against him and he would be mentally and physically penalised.

The Tribunal Decision

4                     After considering the evidence the Tribunal found that the appellant was not a witness of truth and accordingly did not accept the claims that he had been arrested and detained by authorities or that false charges had been lodged against him. The Tribunal found that the facts that the appellant had remained at the one address during his lifetime and that he had worked at his usual job were inconsistent with his claims of fear of persecution. The Tribunal did not accept the appellant’s claims that he had been detained by the police as these claims had not been raised before the Tribunal hearing, and because at the hearing the appellant was unable to recall dates of questioning, detention or trial. The Tribunal was not satisfied as to the plausibility of the appellant’s claims and found the appellant had invented these claims in order to assist his protection visa application. As the Tribunal did not accept that the appellant had been truthful in his evidence to the Tribunal it gave no weight to the oral or written evidence of his witness, whom he described as the brother of his wife and his cousin.

5                     In the view of the Tribunal there was no plausible evidence before it that the appellant had suffered or would suffer persecution for a Convention reason.

Application before Smith FM

6                     An amended application for review of the decision of the Tribunal was filed by the appellant on 23 March 2007. Before Smith FM the appellant asserted the following basis of review:

1.      The Tribunal failed to attain or failed to exercise jurisdiction by reason that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act). In particular:

·           “The Tribunal also considers that if the appellant had been captured and tried in relation to false allegations against him on many, or any occasions in Pakistan before he left there, as he claimed at the hearing he was, he would have mentioned it before the Tribunal hearing.”

·           the Tribunal did not raise that issue with the appellant as required by s 424A.

Decision of Smith FM

7                     The Federal Magistrate found no jurisdictional error in the Tribunal’s decision. His Honour considered that the Tribunal had not demonstrated reliance upon information that required a letter to be sent under s 424A of the Act. The reasoning of the Tribunal in this case made no reference to the appellant’s protection visa application nor to the form of the statements made by him in the application. His Honour found that the Tribunal did not in its reasoning draw a conclusion from the omission of something which the Tribunal expected to be in that document - rather its reasoning was based upon the chronology of the making of the claim, being the information that the claim was made for the first time at the Tribunal’s hearing (at [16]).

8                     Further, the Federal Magistrate considered that the Tribunal’s reasoning about the information could also be construed as being purely “thought processes” so as not to involve the use of “prior information” capable of falling within s 424A(1) of the Act.

9                     The Federal Magistrate also accepted that the information concerning the omission from the protection visa application was given by the appellant orally at the Tribunal hearing, and therefore the exclusion under s 424A(3)(b) of the Act operated (NBKT v MIMA [2006] FCAFC 195). His Honour was not persuaded that the Tribunal had relied on any information which was not “given” by the appellant to the Tribunal and as such found there had been no breach of s 424A of the Act.

Notice of Appeal

10                  The appellant appealed to this Court by notice of appeal filed on 15 June 2007. The appellant sought the following orders:

1.      that the decision of the Federal Magistrates Court of 24 June 2007 be set aside.

2.      that the decision of the Refugee Review Tribunal of 28 November 2006 be set aside.

3.      that the matter be remitted to the Refugee Review Tribunal.

11                  The following grounds were raised:

1.      “Refugee Review Tribunal failed to address my circumstances that I fear for my life and seeking protection in this country and lacking of the country information.”

2.      “Federal Magistrate failed in making decision which is more favourable but believed RRT’s decision as correct.”

Conclusions

12                  There is little substance to the grounds of appeal in this case. It is simply not correct to say that the Tribunal failed to consider the individual circumstances of the appellant. The Tribunal in its discussion of “CLAIMS AND EVIDENCE” in the Decision Record, set out at length the personal circumstances of the appellant. Despite a statement in the Decision Record that “The Tribunal accepts that the applicant is a citizen of India and is who he says he is” (p 7 of 8), this apparent mistake of fact does not infect the reasons of decision of the Tribunal, which indicate an otherwise detailed consideration of the appellant’s case and the basis for his claim (cf NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37]). The fundamental reason for the Tribunal’s decision to affirm the decision not to grant the appellant a protection visa was that the Tribunal did not believe the claims of the appellant, and as a result did not believe that he was a person to whom Australia had protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol so as to satisfy the requirements of s 36(2) of the Act. There is no reference to country information in the Tribunal’s decision, and there is no evidence before me that it is in any way relevant to this case. In any event, the selection of country information and the weight given to such information is a factual matter for the Tribunal: NAHI v MIMIA [2004] FCAFC 10 at [11], VWFW v MIMIA [2006] FCAFC 29 at [63].

13                  Second, the fact that the Federal Magistrate failed to make a decision which was more favourable to the appellant does not constitute a competent ground of appeal from His Honour’s decision.

14                  The appeal should be dismissed.

Associate:

Dated:         16 November 2007