FEDERAL COURT OF AUSTRALIA

SZIIM v Minister for Immigration and Citizenship [2009] FCA 917

SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46

SZBYR v Minister for Immigration & Citizenship[2007] HCA 26

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167

SZIIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 593 of 2009

REEVES J

20 august 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 1 June 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 7 January 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a protection visa to the appellant.

factual summary

2                     This matter has a somewhat complex procedural history. The appellant is a citizen of India who arrived in Australia on 15 July 2005.  On 8 August 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused that application on 15 September 2005.  On 4 October 2005, the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision of the delegate in its decision signed on 28 December 2005. The appellant then sought judicial review of that decision in the Federal Magistrates Court and on 19 June 2006 orders were made by consent quashing the decision and remitting the matter to the Tribunal for reconsideration.

3                     The Tribunal, differently constituted, affirmed the delegate’s decision in a decision handed down on 12 October 2006. The appellant again sought judicial review of that decision in the Federal Magistrates Court. On 22 September 2008 orders were made by consent quashing the decision and remitting the matter to the Tribunal to be reconsidered for a third time.

4                     Before the Tribunal, again differently constituted, the appellant claimed that he joined the Congress Party in 1988 as a general member. He stated that he worked in election campaigns in 2000, 2003 and 2005. He claimed that as a result of this work he was targeted by Bharatiya Janata Party (‘BJP’) supporters. The appellant claimed that in January 2000 BJP supporters attacked him at his house however, he was able to escape. He stated that there was a second attack in February 2000 from which he was also able to escape, despite suffering a head injury. He claimed that he was attacked again in February 2001 while he was travelling in a car towards his village. The appellant stated that he and others ran away, however one of his friends was killed. The appellant claimed he went to Delhi for a few days before returning to his house. He claimed that he was attacked again in January 2005 while he was attending a party meeting and that he had escaped through the back door and went home however, a number of others who had been at the meeting were beaten up as they left. The appellant submitted that a well known Indian criminal, Anand Pal Singh, and his associates, were targeting him and that he was under constant surveillance. He claimed that he, his wife and their children were socially discriminated against.

THE tribunal’s decision

5                     The Tribunal found that the appellant had not been truthful in his claims of persecution and that his claims were not credible. In particular, although the Tribunal accepted that Mr Singh and his associates did exist, none of the newspaper articles, or High Court transcripts provided by the appellant, nor any independent country information available to the Tribunal, indicated that Mr Singh was searching for the appellant in order to do him any harm.

6                     The Tribunal considered that the appellant was on notice from the Department’s decision that his credibility in relation to his claims of persecution were at issue. Two previous Tribunals had accepted the appellant was a low level Congress Party worker and the first Tribunal accepted he was attacked as claimed, although it held at least one of the claims, in relation to the January 2005 attack, was exaggerated. That Tribunal did not accept as credible the appellant’s claims that BJP supporters had been looking for the appellant since his departure for Australia.

7                     The second Tribunal accepted that the appellant may have sustained some relatively minor injuries in January 2000 and February 2001, but did not accept they were the result of politically, or racially motivated attacks, nor did it accept that the appellant was being actively sought by his political opponents. This second Tribunal made it clear to the appellant that negative inferences could arise from his failure to mention Mr Singh at the earlier hearing.

8                     The Tribunal found that the appellant’s central claims had been inconsistent over time and that they contained various inconsistencies, implausibilities and omissions. This caused the Tribunal to doubt his credibility in respect of all his claims. The Tribunal concluded that he had invented aspects of his claims to improve his prospects of being found to be a refugee. Further, his evidence in relation to his role within the Congress party was not consistent, and was vague and lacked detail. The Tribunal also noted that there were serious unexplained inconsistencies relating to the 2000 and 2001 attacks and a general lack of detail as to who was seeking to harm him, why those people were seeking to harm him and what harm the appellant had faced. 

9                     The Tribunal therefore rejected all of the appellant’s claims to fear persecution. The Tribunal was accordingly not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, and affirmed the decision of the delegate not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATE’S DECISION

10                  In his application for judicial review to the Federal Magistrates Court dated 2 February 2009, the appellant raised the following grounds:

1. The member of the Tribunal 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 applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

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

2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

3. The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

11                  In respect of the grounds listed in the application, the Federal Magistrate found that no error was apparent in relation to the Tribunal’s findings about the truthfulness of the appellant’s refugee claims, nor was there any obligation on the Tribunal to consider the hypothesis that its adverse view of the appellant’s credibility might be wrong. His Honour found that the findings made by the Tribunal were open to it on the evidence before it.

12                  The Federal Magistrate further found that the appellant was given a full opportunity over the whole course of the proceedings before the Tribunal to address the particular matters which ultimately concerned the Tribunal. His Honour was not persuaded that there was any substantial dispositive issue, which would not have been sufficiently apparent to the appellant from the course of the proceedings before the delegate and the Tribunal.

13                  The Federal Magistrate dismissed the third ground as no more than an invitation to the Court to assess for itself whether the appellant satisfied the definition of refugee under the Convention, stating that it was not the function of the Court to form its own view about that matter.

14                  The Federal Magistrate also considered a draft amended application prepared by the free panel advisor, which raised the claim that the Tribunal had failed to comply with s 424AA(b)(iii) of the Act regarding certain inconsistencies in the appellant’s presentation of evidence. In this respect, his Honour concluded that as the information in question was not required to be put to the appellant pursuant to s 424A of the Act, there could be no question of whether the Tribunal failed to comply with s 424AA of the Act: relying on SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 and SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.

15                  Having found no jurisdictional error in the decision of the Tribunal, the Federal Magistrate therefore dismissed the application for review.

the present APPEAL

16                  On 19 June 2009 the appellant filed a notice of appeal in this Court which alleged that:

1. 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 applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.

2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the applicant claims were plausible, being conclusions that were not obviously open on the known materials, without giving the applicant the opportunity to be heard in respect of those matters.

17                  At the hearing of the appeal before me the appellant appeared in person unrepresented, but assisted by an interpreter. Ms Sirtes appeared for the Minister. The appellant made no oral submissions and both parties were content to rely upon the written submissions they had earlier filed.

consideration

18                  In my view, the notice of appeal in this matter is fundamentally deficient and it raises no ground of any merit.  The two grounds of appeal above are identical to the first two grounds stated in the application for judicial review before the Federal Magistrates Court.  The appellant appears to have omitted the third ground of judicial review from the grounds stated in the notice of appeal.

19                  It follows that the common grounds are directed to the Tribunal’s decision and not to the decision of the Federal Magistrate.  The appellant has therefore made no attempt in his grounds of appeal to identify any error on the part of the Federal Magistrate.  This is, after all, the primary purpose of any appeal to this Court from a judgment of the Federal Magistrates Court.

20                  Notwithstanding the complete failure of the appellant’s notice of appeal to identify any appealable error on the part of the Federal Magistrate, because the appellant is unrepresented, I have examined the Federal Magistrate’s decision in order to identify whether it contains any such appealable error.  Having done so, I respectfully agree with his Honour’s conclusion that ground 1 of the application for judicial review is without merit.  In addition to his Honour’s conclusions on this ground, I consider it simply seeks to quibble with the findings of fact made by the Tribunal and thereby attempts to engage this Court (and before it, the Federal Magistrates Court) in a merits review of the Tribunal’s decision.  That is not the role of this Court, and nor is it the role of the Federal Magistrates Court:  see, for example, NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

21                  As to ground 2 of the application for judicial review before the Federal Magistrate, I also respectfully agree with his Honour’s conclusions that: this ground is not particularised (and therefore inscrutable); not supported by any evidence; and, most importantly of all, does not raise any jurisdictional error on the part of the Tribunal.

conclusion

22                  For these reasons, this appeal must be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         20 August 2009