FEDERAL COURT OF AUSTRALIA

SZLOA v Minister for Immigration and Citizenship [2008] FCA 1397

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30

Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195

SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 301

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535

SZLOA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 958 of 2008

REEVES J

12 SEPTEMBER 2008

DARWIN

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

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Raphael delivered on 5 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 2 October 2007 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS

2                     The appellant is a citizen of India who arrived in Australia on a visitor’s visa on 10 April 2007. He lodged his application for a protection visa nine days later, on 19 April 2007. A delegate of the first respondent refused that application on 16 May 2007. The appellant then applied to the Tribunal for a review of that decision on 13 June 2007.

3                     The appellant’s visa application set out his claims to fear persecution in India on the basis of his membership of the Indian Muslim League (‘the IML’), a political party, and also because he was perceived to be a fundamentalist Muslim. The relevant statements were:

In answer to Question 40: Why did you leave that country?

I left the country because of the continuous threat and attacks from VHP goondas. I was a reliable worker of IML. Our President Mr EKK Padannakadu was attacked by some goondas of VHP, he was seriously injured by them. So we attacked them, their      VHP Mandalam President Mr Palayil Kunjikrishnan. So they made counter attack on IML workers. And they cut my friend’s hand. He was called Riyas. On this pathetic situation I left the State and settled in Mumbai in Sept 2004. I joined a car wash firm. After one years the people of State informed the BJP workers in Maharashtra and I am sacked from the job. I returned home on 24-02-2006.

On 04-03-2006 VHP goondas attacked me by wearing masks so that my bottom of the face has been injured. I was in the hospital for two months. Again in 22-06-2006 one cruel attack was made by them in which my brother has been brutally murdered. After this incident I fled to Bombay. During this time one Abdulla of IML told me to flee to Australia where I am saved and protected.

And in answer to Question 41: What do you fear may happen to you if you go back to that country?

The VHP workers/goondas are chasing me like devils. If I cannot live in a city like Mumbai, definitely I am not safe in my State. If I was safe in Mumbai I could have lead my life in Mumbai. But continuos[sic] threatening and series of attacks made me seriously think about my future. If I am there it will affect my family also.

And in answer to Question 43: Why do you think this will happen to you if you go back?

Mr Sreeny of VHP is controlling the goonda gang. He is active in that locality. He is       waiting for me, I know from reliable sources. In these circumstances I am trembling with fear to go back.

4                     By a letter dated 26 June 2007, the Tribunal asked the appellant to provide further documentation to support his claims, including his passport, his hospital records, details of his previous residential addresses and his murdered brother’s particulars. In another letter of the same date, the Tribunal asked the appellant to comment upon specific information which the Tribunal considered may cause it to affirm the delegate’s decision, namely the ease with which he obtained a passport to leave India, the ease with which he could relocate within India, and country information to the effect that all faiths enjoy freedom of worship in India and that India is a democracy which is governed by the rule of law. The appellant did not respond to these letters, nor to the ‘Invitation to Appear before the Tribunal’ sent the same day, but he did attend the hearing before the Tribunal on 30 July 2007.

5                     Before the Tribunal the appellant confirmed the claims in his application form and added the further claim that he had run for election as a member of the Indian National League (a political party in opposition to the Vishwa Hindu Parishad (‘VHP’)) as a student and that he had been manhandled and threatened by VHP figures as a result. The appellant claimed that he became a leader of the IML and, despite being ‘accused of being a religious fundamentalist’, he stood for election as a member for his local ward (or as secretary, the Tribunal states that he ‘changed his evidence’ on this point).

6                     He went on to repeat his claim that VHP workers attacked him, there was retaliation and his friend’s hand was cut. He stated that his brother made a complaint to police after he was again attacked by VHP members, and he was given police protection for thirty months. He stated that when the protection was withdrawn (for no known reason), VHP members attacked his home and killed his brother on 22 July (or June) 2006. He claimed he then had to flee back to Mumbai. The appellant agreed with the Tribunal (referring to country information) that ‘police do act to protect victims’ but said the police action may merely amount to inquiries being made unless the victim has ‘money and strength’.

7                     Following the hearing the appellant requested, and was apparently provided with, a copy of the tape recording of the Tribunal hearing. In a letter received by the Tribunal on 8 August 2007, the appellant provided responses to the concerns the Tribunal had raised in its letters dated 26 June 2007 (above).  He stated that: he left India without problems because he had no criminal record; he had tried to relocate to Mumbai but had been forced to leave his job and later been attacked; and he claimed that he had tried to get local police to protect him against the VHP extremists but as that had failed, he claimed that he feared that on return to India ‘the politically motivated radical Hindus will harass and seriously harm me or perhaps kill me with freehand without any fear of law enforcement authorities’. The appellant provided poor copies of three documents in Malayalam (apparently a witness summons, a summons to an accused, and an incident report). The Tribunal noted in its Decision Record that although it asked the appellant, through an interpreter, to provide the originals or legible copies of these documents and was told they would be forthcoming, none was received.

THE TRIBUNAL’S DECISION

8                     In the ‘Findings and Reasons’ section of its Decision Record, the Tribunal found that the appellant ‘could not answer basic questions about who was the present leader of the party he was involved in. The [appellant’s] evidence lacked any detail or plausible answers. The [appellant’s] claims were unsubstantiated and despite being given ample opportunity to supply further evidence and comments prior to and after the hearing did not do so’. The Tribunal later noted that it could not see any injuries or scarring to the appellant’s face as he claimed and it was unimpressed by his evidence that ‘he was forced to leave his job in Mumbai due to pressure from the VHP’ in the face of his other evidence that ‘all incidents and threats were confined to his local area/village’. In relation to the materials later provided by the appellant, the Tribunal found that ‘[a]s the documents are illegible the Tribunal cannot place any weight on them’.

9                     Due to its adverse credibility finding, the Tribunal did not accept that the appellant had been involved with the IML, or in student politics, or that the claimed incidents had taken place, or that the appellant would be likely to become politically involved in the future in India. Nor did it accept, in the absence of evidence, that the appellant had been harmed in the past due to a perception that he was a Muslim fundamentalist. The Tribunal also noted country information suggesting that failed asylum seekers returning to India would be unlikely to face adverse attention from the authorities. The Tribunal therefore concluded that the appellant did not hold a well-founded fear of Convention-related harm, whether related to his claimed political opinion or his religious beliefs, and affirmed the decision of the delegate accordingly.

THE FEDERAL MAGISTRATE’S DECISION

10                  In his amended application for judicial review filed in the Federal Magistrates Court on 27 March 2008, the appellant raised six grounds as set out below (excluding the particulars):

1.         The Tribunal did not give to the applicant before the hearing the information that it had about the history of the IML OR IUML party and it did not give to the applicant the country information it had about Kerala. The Tribunal used this information …this was against section 424A of the Migration Act 1958.

2.         The Tribunal in making its determination failed to record its decision in accordance with Section 430 of the Migration Act.

3.         The Tribunal failed to ask a question that it was, in the circumstance of this case, legally required to ask.

4.         [T]he decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicants claims; because I spent 3 hours being questioned without a break and felt stressed and intimidated.

5.         The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

6.         The Refugee Review Tribunal a[sic] failed to act that the applicant satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant satisfy the four key elements that are required to satisfy the Convention definition. The applicants [sic] state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.

11                  Federal Magistrate Raphael made findings against each of the appellant’s grounds and rejected the appellant’s application for review. In relation to the first ground, his Honour held that the country information referred to was excepted from the operation of s424A(1) by s424A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’).

12                  In relation to the second ground his Honour referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 and Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 and found that s 430 of the Act is a procedural provision which cannot give rise to jurisdictional error.

13                  The Federal Magistrate dismissed the third ground on the basis that the Tribunal was not required to consider the availability of state protection in India, because it had already determined that it did not accept the appellant’s claims to fear harm.

14                  In relation to the fourth ground, his Honour interpreted this claim as a failure to comply with s 425 of the Act and found that the appellant bore a heavy onus in demonstrating that the hearing conducted by the Tribunal failed to ‘fulfil the promise of the invitation’ to hearing, citing SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653. His Honour then said: ‘… one would say that in order for the [appellant] to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the [appellant] properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The [appellant] has not done this and has not requested an adjournment to do so. I am unable to assist the [appellant] in relation to this ground’.

15                  In relation to ground five, his Honour stated that he was unable to understand the appellant’s particulars, but observed that the Tribunal had considered the appellant’s claims, in its consideration of his evidence, and rejected his evidence as lacking in credibility.

16                  Finally, in relation to the sixth ground, his Honour found that this claim was ‘no more than a request for merits review which this court cannot indulge in’.  

17                  The Federal Magistrate also considered and rejected a number of oral claims raised by the appellant at hearing.  His Honour did not accept that the Tribunal had mistakenly questioned the appellant on the wrong political organisation, given that the appellant himself had referred to the IML in his visa application (see [3] above).  His Honour found that the issue of whether the appellant had a scar on his chin at the time of the Tribunal hearing which was attributable to the claimed attacks on him was a matter for the Tribunal. 

18                  Finally, his Honour found that the appellant had failed to communicate with the Tribunal  about the availability of  his original documents and in circumstances where the Tribunal had been told the appellant would be providing the originals, ‘the Tribunal’s decision as to how to treat the documents seems … to be one entirely within jurisdiction. It gave the documents no weight because all it had in front of it was some paper, which had no clear relationship with the [appellant] or his claims’.

GROUNDS OF THE PRESENT APPEAL

19                  The appellant filed a notice of appeal in this Court on 26 June 2008 which set out a single ground of appeal as follows:

The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

Particular:

i.          it failed to properly apply the consideration that applicants for refugee    status ought to be given the benefit of the doubt in circumstances     where the Tribunal entertained the possibility that the applicants             claims are plausible, which was the case here. 

THE CONTENTIONS

20                  At the hearing of the appeal before me on 10 September 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Watson appeared for the first respondent. 

21                  The appellant did not file an outline of written submissions, but he did make some brief oral submissions before me.  He claimed that if he were to return to India, he would be killed, which is of course not a matter that this Court can consider on this appeal.  He conceded that he was at fault for the confusion which arose before the Federal Magistrate in relation to the IML and the IUML, because he had used the wrong name.  When I asked him why he thought the Federal Magistrate’s decision was in error, he responded that he could not find any fault with the Federal Magistrate’s decision, rather his complaint was with the Tribunal’s decision.

22                  In her oral submissions, Ms Watson submitted that the appellant had referred to IML in his visa application, a matter which was referred to by Federal Magistrate Raphael, at [19] of his Honour’s decision.  She submitted that there was no jurisdictional error apparent in the Tribunal’s decision and that the Federal Magistrate had properly rejected the appellant’s application for judicial review.  Otherwise, Ms Watson relied upon the written outline of submissions that had earlier been filed on behalf of the first respondent.  They can be summarised as follows:

a.       Giving a beneficial reading to the appellant’s sole ground of appeal, he   appears to be alleging that the Tribunal applied the wrong test in    assessing his application for review of the delegate’s decision, by             failing to give him the benefit of the doubt in circumstances where his      claims were plausible.

b.                The correct test to be applied in assessing the appellant’s application was not a matter that was raised before the Federal Magistrate and it should not be raised for the first time before this Court.

c.                In any event, this ground of appeal is misconceived because on a review of a delegate’s decision such as occurred here, it is for the appellant to satisfy the Tribunal that all the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579 and 596.

d.                In conducting a review of the delegate’s decision:

i)                    The merits of the case including the weight to be given to the evidence and the credibility of the witnesses are matters for the Tribunal to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 to 292.

ii)                   The Tribunal does not have to possess rebutting evidence before concluding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

iii)                 The Tribunal is not required to accept uncritically any and all claims made by the appellant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451; [1994] FCA 535.

e.                The findings of the Tribunal were open to it on the evidence before it and the Federal Magistrate was therefore correct in concluding that the Tribunal’s decision was not affected by jurisdictional error.

f.                  The appellant’s attempts to cavil with the merits of the Tribunal’s decision about the plausibility of his claims, is an attempt at merits review.

CONSIDERATION

23                  On a generous construction, the ground of appeal which the appellant has sought to raise before this Court could be read as covering the same matter as the sixth ground of review raised before the Federal Magistrate.  So, taking into account the fact that the appellant is unrepresented and notwithstanding the first respondent’s submissions to the contrary, I consider that I should proceed to deal with it.  Adopting the first respondent’s beneficial construction of that ground, it is seeking to allege that the Tribunal applied the wrong test in assessing the appellant’s application for review of the delegate’s decision,by failing to give him the benefit of the doubt, in circumstances where his claims were plausible.  Presumably the ‘test’ the appellant is referring to is the definition of ‘refugee’ in the Convention.

24                  It is clear from the Tribunal’s Decision Record that the Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations under the Convention, that is, the appellant did not fall within the definition of ‘refugee’, because the Tribunal did not believe his claims and evidence and therefore was not satisfied that he had a well-founded fear of persecution in India.  This adverse credibility finding flowed from the Tribunal’s assessment of a number of aspects of the appellant’s claims and evidence including: the numerous changes he made to various parts of his evidence; his failure to provide details on important matters; his failure to substantiate some of the claims he made, either by oral or documentary evidence; his failure to provide legible copies of the documents that he provided to the Tribunal, notwithstanding an arrangement that he would do so; and the inconsistency between the appellant’s conduct and his claims (for example he returned to his home village when he claimed to have been attacked there).  It is therefore clear, in my view, that the Tribunal’s adverse credibility finding about the appellant was open to it on the evidence. 

25                  That being so, the assessment of the appellant’s evidence including the weight the Tribunal gave to various parts of his evidence and its ultimate adverse finding on the appellant’s credibility, are matters that fall squarely within the fact finding jurisdiction of the Tribunal.  Having rejected the appellant’s claims to fear persecution because they lacked credibility, there was obviously no need for the Tribunal to consider whether those rejected claims could bring the appellant within the definition of ‘refugee’ in the Convention.  It necessarily follows that there is no jurisdictional error apparent in the Tribunal’s decision and the Federal Magistrate therefore committed no error, as the appellant guilessly conceded before me (see [21] above).  For these reasons, the appellant’s sole ground of appeal has no merit.

CONCLUSION

26                  This appeal will therefore be dismissed. 

Associate:

Dated:         12 September 2008