FEDERAL COURT OF AUSTRALIA

SZNJG v Minister for Immigration and Citizenship [2009] FCA 928

 Migration Act 1958 (Cth)

 Abebe v Commonwealth (1999) 197 CLR 510

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

SZNJG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 695 of 2009

REEVES J

20 August 2009

SYDNEY

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.
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REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 18 June 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 25 February 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                     The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 21 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. The appellant attended an interview on 14 October 2008 with a departmental officer for the purposes of assessing his application. A delegate of the Minister refused that application on 27 October 2008. On 21 November 2008 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant claimed that he joined the Students Federation of India (‘SFI’), which is the students’ wing of the Communist Party, during his time at university. He was elected as the Pallithura Branch Secretary of the Democratic Youth Federation of India (‘DYFI’) and after his studies he remained an active member of the Communist Party. In 1998 he joined the Kerala Catholic Youth Movement (‘KCYM’) and, with the support of the Communist Party, he became supervisor of a construction company in 2000. He was also nominated as a member of the Communist Party in that year. On one occasion, while attending a Party meeting, members of the Congress Party threw bombs into the meeting, injuring a number of people. Subsequently, he concentrated on his KCYM activities and was elected as a member of the central committee of KCYM in 2006. He then rejoined the Communist Party in 2006 and he, and others, were attacked by Congress Party members, resulting in him being hospitalised for four days. He claimed that there followed a revenge attack and his home village became violent, so he left and went to Bangalore for 3 months.

4                     After the problems were partially solved he returned to his home area, however, the violence reoccurred and he claimed his hands were severely injured in an attack by the Bharathiya Janatha Party (‘BJP’) members. In 2007, after he protested against the pollution from a clay factory, which factory was supported by the BJP, his family’s home was set on fire and his two brothers were killed. After this, he claimed a bomb was thrown at him while he was riding his bike and he was hospitalised for 12 days. He claimed he was attacked again while in hospital. He also claimed his family was threatened and death threats were made against him. After he left the hospital he went to Chennai for five months, during which time he was told about World Youth Day in Australia. He claimed he returned home to say goodbye to his parents, however, the rebels were waiting for him so he returned to Chennai and then fled to Australia.

THE tribunal’s decision

5                     The Tribunal accepted that the appellant supported the Communist Party in India and that he was a member of the KCYM. However, it did not accept that the appellant was a witness of truth and therefore rejected most of his other claims including that: he had the political profile he claimed to have in Kerala; he organised a strike in his area; he was attacked and injured as he claimed; his family home was burnt and his brothers were killed in the fire; and he cannot return to India because of his claims of persecution there.

6                     In making its adverse credibility finding, the Tribunal relied upon what it said was his “confused and at times inconsistent evidence ….. about important aspects of his claims”. Specifically, the Tribunal relied upon the fact he claimed that he went to live in Bangalore in September 2007, after the fire at his family home, in order to avoid harm, yet he gave evidence that he returned to his hometown twice before he left for Australia in July 2008. The Tribunal considered this conduct was inconsistent with his claims that he feared for his safety in his hometown after the fire.

7                     The Tribunal also relied upon conflicts in the evidence he gave to it about the periods of time he spent in his hometown during these two return visits. First, he said that he returned from Bangalore to his hometown for two weeks at Christmas 2007; however this conflicted with the period of four days he gave earlier in his evidence. When the Tribunal raised this inconsistency with him, the appellant stated that although he had planned to stay for two weeks before Christmas, he only ended up staying for four days. Secondly, he said that he returned in July 2008 and left after only one day, yet earlier in his oral evidence he said he stayed there for two weeks on that occasion.

8                     The Tribunal also relied upon what it considered was a conflict in the appellant’s evidence about where he and his parents were living before he departed for Australia. It noted that he told it that his parents were residing in the family home and that he had lived with his parents in the family home before departing for Australia in July 2008. When the Tribunal reminded the appellant that he had earlier stated that the family home had been burnt in September 2007, the appellant then claimed that his parents were living in the outhouse.

9                     Further, the Tribunal relied upon what it considered were inconsistencies in the appellant’s claims that he was injured by political opponents and hospitalised for his injuries, specifically about when the attacks occurred and for how long he was hospitalised after them. The Tribunal noted that in the appellant’s statement in support of his visa application he stated that he was injured in August 2006 and hospitalised for four days and then again in 2007 and hospitalised for 12 days. However, in his oral evidence to the Tribunal the appellant said that in 2006 he was in hospital for 12 days and that he had been hospitalised twice: once in 2000 and once in 2006.

10                  Finally, the Tribunal concluded that the appellant had modified his evidence to attempt to explain the difficulties and inconsistencies that it had raised with him and that his evidence was unreliable. For example, it noted that the appellant attempted to explain the difference between his oral evidence and his written statement by claiming that a friend had prepared the application on his behalf and that friend may have made a mistake. The Tribunal noted that this claim was inconsistent with the appellant’s earlier evidence that his friend had read back what was in the application to him

11                  Accordingly, the Tribunal found no plausible evidence that there was a real chance that the appellant would suffer persecution from political opponents, or anyone else in India, for reasons of his political opinion, or any other Convention reason.

12                  The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATE’S DECISION

13                  In his application to the Federal Magistrates Court dated 24 March 2009, the appellant raised the following grounds:

(1) Jurisdictional error

(2) Breach of procedural fairness

(3) Breach of natural justice

14                  The Federal Magistrate noted that none of the grounds was particularised and that they lacked the sort of substance that gave them any meaning. Nonetheless, his Honour proceeded to consider whether the Tribunal had given the appellant a fair and unbiased hearing. He did so by reference to the relevant provisions of the Migration Act 1958 (Cth) (‘the Act’): s 424A and 425.

15                  His Honour found that the information relied on by the Tribunal in reaching its decision was independent country information, information provided to the Tribunal by the appellant, and information in the appellant’s written statement in support of his visa application. Since this information all fell within the exceptions to the obligations in s 424A(1) of the Act, contained in s 424A(3) of the Act, his Honour concluded there was no breach of s 424A(1).

16                  As to s 425 of the Act, the Federal Magistrate was also satisfied that the appellant was invited to a Tribunal hearing and that the Tribunal had raised with the appellant its concerns about the inconsistencies in his evidence and the general credibility of his claims. Further, his Honour noted that the Tribunal allowed the appellant additional time in which to send additional information to it to support his application, or to comment on the inconsistencies in his evidence.

17                  His Honour was satisfied that the principal determinative issue in the matter, the appellant’s credibility, was clearly raised with him at various stages during the hearing and therefore the Tribunal had complied with its s 425 obligations.

18                  Finally, his Honour was unable to identify any breach of any of the other provisions of Div.4 of Pt.7 of the Act.

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

the present APPEAL

20                  On 9 July 2009 the appellant filed a notice of appeal in this Court which alleged that:

1. The honourable FM failed to consider the grounds of my application such as error of law made by 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 Act.

2. Te Tribunal was un satisfied that there is a real chance that I would suffer harm amount to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal  

                        [Errors in original]

21                  At the hearing of the appeal before me the appellant appeared in person unrepresented, but assisted by an interpreter. Mr Cleary appeared for the Minister. The appellant made some brief oral submissions which essentially sought to canvas the factual findings made by the Tribunal. Apart from submitting that this Court had no power to review the factual findings of the Tribunal, Mr Cleary was content to rely upon the written submissions that had earlier been filed on behalf of the Minister.

consideration

22                  The first ground of appeal (above) does at least attempt to identify some error on the part of the Federal Magistrate, which is the central focus of any appeal to this Court. However, the second ground of appeal is solely directed to perceived shortcomings in the Tribunal’s decision which, absent some identified error on the part of the Federal Magistrate, is not a matter for consideration in an appeal of this kind.

23                  Since no error on the part of the Federal Magistrate has been identified in the second ground of appeal, it must be rejected.

24                  Even if it were not rejected for this reason, it must be rejected, along with the first ground of appeal, because the error identified in both grounds of appeal simply seeks to challenge the factual conclusions the Tribunal reached as to:

Ø                  whether the appellant was a refugee; and

Ø                  whether there was a real chance that the appellant would suffer persecution if he were to return to India.

25                  Even if there were some error in the Tribunal’s conclusions about these matters – it is not possible from the unparticularised and general nature of these two grounds of appeal to begin to assess whether there is - there is clear authority that errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error: see Abebe v Commonwealth (1999) 197 CLR 510 at [137].

26                  Furthermore, it is not the role of this Court, nor is it the role of the Federal Magistrates Court, to second guess the Tribunal’s fact finding role, or to engage in a merits review of the Tribunal’s decision. These are matters that fall squarely within the fact finding jurisdiction of the Tribunal: see, for example, NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

27                  It follows that both grounds of appeal must be rejected for these reasons.

28                  Notwithstanding this conclusion, because the appellant is unrepresented, I have considered the reasons of the Federal Magistrate in relation to the grounds of appeal raised before him (which differ from the two grounds of appeal before this Court). Having done so, I consider that his Honour has correctly stated the law in relation to those matters and given clear and cogent reasons for concluding that the Tribunal committed no error, let alone jurisdictional error, in its consideration of the appellant’s application.

conclusion

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

Associate:

Dated:         20 August 2009