FEDERAL COURT OF AUSTRALIA

SZLNN v Minister for Immigration and Citizenship [2008] FCA 1462

Migration Act 1958 (Cth)  

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

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

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

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

SZLNN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 909 of 2008

REEVES J

26 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 2 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 27 September 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 26 February 2007. He lodged an application for a protection visa three weeks later, on 21 March 2007. A delegate of the first respondent refused that application on 4 April 2007.  The appellant then applied to the Tribunal for a review of that decision on 27 April 2007.

3                     The appellant lodged a statement with his protection visa application which set out his claims to fear persecution in India on the basis of his religion and his relationship with a Christian leader (Father John Antony Alapatt, the Director of a Christian retreat centre in India). The appellant claimed that members of the Vishwa Hindu Parishad (‘VHP’) had attacked his family regularly over the past three years and that the same people would kill him if he returned to India. He also claimed the local Indian authorities would not protect him because ‘the VHP is a radio group of BJP [Bharatiya Janata Party] who is ruling the country and most of the states … any authority will not take any step against the political party like the VHP’.

4                     In rejecting the appellant’s application the delegate stated that she did not believe the appellant’s claims of harassment on the basis of his religion. Further, she did not accept that a person under continuous attack for three years would be able to maintain constant employment with the same company or to continue to reside at the same address, as the appellant had done. The delegate also found that the existence of protective orders made by the Kerala High Court in favour of Father Alapatt ‘is indicative that there is no state sanctioning of Christian targeting in Kerala and the state is willing to afford protection’.

5                     In his application for review to the Tribunal, the appellant included evidence of his claim to fear persecution India - due to his activities as a Catholic exorcist.  He claimed to have been involved in this work with Father Alapatt and to have come to the adverse attention of Hindus in Kerala.  The appellant claimed that the High Court of Kerala made the protective order after an attack on himself, Father Alpatt and his premises and volunteers.

6                     The appellant made various claims relating to religiously motivated attacks as follows:

·        The appellant claimed to have been knocked unconscious with an iron bar in an attack on 12 August 2001 and to have had both his hands broken in an independent attack on himself and another volunteer. The appellant claimed that this attack was reported in the media.

·        Having recovered from this attack, the appellant alleges that the VHP made a further attack on Father Alapatt’s premises in which he and another volunteer were seriously injured. The appellant stated that this was done against the Court order so that the High Court gave another order, to the Director General of Police, to give full protection to Father Alapatt and his premises.

·        The appellant claimed that this protection order somehow caused the VHP to target the volunteers more strongly and he claimed to have been attacked on three separate occasions by VHP members between 2001 and 2006. 

·        The appellant claimed that another volunteer of Father Alapatt had in fact been killed on 15 March 2003 by Mr Jayachandra, ‘a well known killer of the locality’ on behalf of the VHP.

·         The appellant alleged another attack was made on him on 28 April 2004, leaving him seriously injured and causing him to spend six months recuperating (during which time he claims he received many phone calls threatening to kill him).

·         Finally, the appellant claimed another attack occurred on 24 December 2006, during which his family were assailed by someone with a sword and a knife resulting in both the appellant and his wife being stabbed and in his children being hospitalised after being attacked with an iron bar. He asserted that this final attack came to the attention of a state government minister and was under investigation by the police. 

7                     In conclusion the appellant submitted that he and his family had been subjected to continuous attacks by the VHP and those under their instruction, including threatening phone calls, and that his family would suffer hardship if he were killed as he is the only member of the family earning an income.

8                     Following the hearing on 6 June 2007 the Tribunal requested further documentary evidence in support of the appellant’s claims. The appellant provided some of the evidence requested but requested an extension of time to produce the balance. The Tribunal refused any extra time on 27 August 2007 on the basis that it had allowed the appellant sufficient time to provide the information.

THE TRIBUNAL’S DECISION

9                     The Tribunal was satisfied that the appellant was a Catholic as he claimed, and that he had associations with Father Alapatt.  It further accepted that there had been attacks on Father Alapatt and his followers which resulted in protective orders.  The Tribunal was therefore satisfied that the Keralan legal system provided adequate protection for followers such as the appellant and it noted that in any case there had been no attacks which post-dated the orders.

10                  The Tribunal did not accept the appellant’s claim that he had been attacked on the three occasions specified between 2001 and 2006.  It did not find it credible that he could have completely recovered from the kind of injuries that he claimed to have suffered, within the timeframe he claimed. For these reasons, the Tribunal was satisfied that the appellant had access to adequate state protection to address any problems which might arise from his religious involvement, and it did not accept that the appellant was owed any protection as a refugee under the Convention. Accordingly, the Tribunal affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE’S DECISION

11                  The appellant filed an application for review in the Federal Magistrates Court on 22 October 2007 in which he raised ten grounds for review. In summary the appellant claimedthat the Tribunal:

·                     Was wrong in refusing to accept that the appellant satisfied the Convention        definition of a ‘refugee’ and failing to apply its mind to this issue;

·                     Preferred country information over the appellant’s own account and failed to      conduct a fair inquiry;

·                     Made an error of fact in finding that the appellant’s claim (that he was subject    to ongoing persecution) was not credible;

·                     Incorrectly found that the appellant had not submitted evidence on time and       failed to provide an extension of time to do so;

·                     Provided the appellant with inadequate interpretation;

·                     Gave vague reasons; and

·                     Was biased against the appellant and failed to afford natural justice.

12                  The Federal Magistrate considered the Tribunal’s decision in light of the claims made by the appellant and dismissed the application. His Honour noted that the Court could not engage in any fact-finding, which would involve the merits of the appellant’s claims. His Honour found that the Tribunal was entitled to obtain information which it considered relevant to the review it was undertaking, including country information, under s 424 of the Migration Act 1958 (Cth) (‘the Act’).  The Tribunal did not utilise country information to say that events appellant claimed occurred had not in fact, but rather to say that if they did indeed happen, state protection would reasonably be available from the Indian authorities.

13                  His Honour further noted that credibility findings were a matter for the Tribunal.

14                  In relation to the extension of time, his Honour was not satisfied that the Tribunal had acted unreasonably when setting time limits for the appellant to provide material.  The appellant had had over six months to produce further evidence and had provided no information to explain why a further delay would be required for additional evidence.

15                  His Honour also found that there was no proof that the standard of interpretation was inadequate, in the sense described by Justice Middleton in SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653.

16                  Finally, His Honour found that there was no evidence that the reasons given by the Tribunal were vague or that the appellant had been denied natural justice.  His Honour found that having considered ‘the matters raised by the [appellant] in his application and hearing him today’ he was ‘unable to provide him with the review he seeks’ and  the application therefore had to be dismissed.

GROUNDS OF THE PRESENT APPEAL

17                  The notice of appeal filed in this Court on 19 June 2008 raised the following grounds:

The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal.

The Court below erred in that it ought to have found 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

18                  At the hearing of the appeal before me on 18 September 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Markus appeared for the first respondent. 

19                  The appellant had earlier filed an outline of written submissions.  With the exception of paragraph 1 B of that outline, which is very similar to the second ground of appeal before me, the appellant’s written submissions did not correlate to the grounds of appeal before me.  Instead, they sought to raise other alleged failures by the Tribunal to properly consider the appellant’s evidence and claims (paragraphs 1 A, 4, 6 and the concluding two paragraphs); an alleged breach of s 430 of the Act (paragraph 2); an alleged failure to provide procedural fairness (paragraph 3) and an allegation of bias (paragraph 5).

20                  In his oral submissions, the appellant informed me that Father Alapatt had passed away on 1 August 2008 and he asserted that if he returned to India, he would be attacked by Father Alapatt’s enemies.  He also asserted that the Tribunal did not grant him enough time to provide supporting evidence and that the interpreter provided at the Tribunal hearing did not understand him. 

21                  The first respondent had also earlier filed an outline of written submissions.  In relation to ground one of the notice of appeal, the first respondent submitted that it did not reflect any of the grounds of review raised before the Federal Magistrate and, in so far as it was another attempt to complain  about the Tribunal’s failure to comply with s 424, the Federal Magistrate was correct in holding that the information fell within the exceptions set out in s 424A(3)(a) and(b).

22                  As to ground two of the notice of appeal, the first respondent submitted that whilst all refugee claims need to be considered with due regard for the difficulties many claimants have in presenting their applications, there is no legal principle that requires the Tribunal to give an applicant the benefit of the doubt.  The first respondent submitted that on any review conducted by it, the Tribunal has to be satisfied that all of the statutory elements are made out.  In discharging that task:

a)      the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the Tribunal to determine, in line with Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 to 292;

b)      the Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; [1994] FCA 301; and

c)      The Tribunal is not required to accept uncritically any and all claims made by an applicant: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170.

23                  In his oral submissions, Mr Markus first addressed the appellant’s outline of written submissions (which had not been served on the first respondent).  He submitted that the written outline did not correspond with the grounds of appeal before this Court; that it raised matters not raised before the Federal Magistrate and that the allegations in it were not particularised.  In any event, he submitted that none of the matters raised had merit.  In particular, he submitted that the appellant’s complaints about the Tribunal’s failure to properly consider his evidence and claims, was no more than an attempt at merits review.  As to the alleged breach of s 430 and the failure to provide procedural fairness, he submitted that it is clear from the Tribunal’s Decision Record that the applicant’s credibility was an issue which was raised with him by the Tribunal and a matter that he ought to have been aware of throughout the hearing.  Therefore, there was no failure to comply with s 430 or to otherwise provide procedural fairness, even if some independent duty to provide procedural fairness arises.  In relation to the allegation of bias, Mr Markus submitted that it was neither clearly raised, nor proven by clear evidence and should therefore be rejected.

24                  In response to the appellant’s oral submissions, Mr Markus submitted orally that the Federal Magistrate was correct, for the reasons stated, in rejecting the appellant’s claims that the Tribunal had not provided him with sufficient time to provide his evidence (see [14] to [15] of the Federal Magistrate’s reasons) and in finding no merit in his complaint about having interpretation problems before the Tribunal (see [16] of the Federal Magistrate’s reasons).

CONSIDERATION

25                  I do not propose to consider the additional matters and complaints raised by the appellant in his written and oral submissions before this Court.  With the exception of paragraph 1 B of the written submissions, they do not correlate to the grounds of appeal in the notice of appeal.  Furthermore, they are all directed to complaints about the Tribunal’s decision and not to identifying error in the Federal Magistrate’s decision.  Finally, none of them was raised before the Federal Magistrate and none appears to be properly particularised.  Even if I were minded to consider any of these matters, on their face they do not appear to me to have any merit for the reasons stated by Mr Markus in his oral submissions (see [23] above).

26                  As to the first ground of appeal in the notice of appeal, it alleges an error on the part of the Federal Magistrate, in relation to an error allegedly made by the Tribunal, in not giving the appellant the “opportunity of the adverse information in the possession of the Tribunal”.  The appellant has not provided any particulars as to what the ‘adverse’ information is that he is referring to.  Without particulars, it is impossible to deal with this ground.  Further, on my reading of the grounds of review before the Federal Magistrate and the Federal Magistrate’s reasons, I cannot see where this, or any similar ground, was raised before the Federal Magistrate.  It is impossible for the appellant to succeed in alleging that the Federal Magistrate made an error when he did not raise the matter before his Honour.  I therefore reject this ground of appeal.

27                  As to the second ground of appeal, it is redolent by its very terms, of an attempt at a merits review (attempting to say for example that the [appellant’s] claims are plausible).  This ground is similar to the second ground of appeal raised before the Federal Magistrate, albeit that the appellant was alleging there that the Tribunal should have been satisfied that the appellant’s evidence met the four elements of the definition of ‘refugee’.  I respectfully agree with the Federal Magistrate’s decision to reject the similar ground before him, stating (at [10]) that “this ground is simply an attempt to challenge the merits of the Tribunal’s rejection of the applicant’s claim to be a refugee”.  It hardly need be said that neither this Court nor the Federal Magistrates Court is empowered to reconsider the merits of the Tribunal’s decision (see for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

28                  It follows that neither of the grounds of appeal before me has merit and this appeal must therefore be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         26 September 2008