FEDERAL COURT OF AUSTRALIA

SZNKK v Minister for Immigration and Citizenship [2009] FCA 1107

Migration Act 1958 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510

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

SZNKK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 682 of 2009

REEVES J

1 OCTOBER 2009

BRISBANE (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The parties are to be heard on the question of costs.

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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’).

BACKGROUND AND PROCEDURAL HISTORY

2                     The appellant is a citizen of India who arrived in Australia on 9 July 2008.  On 19 August 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

CLAIMS OF RELIGIOUS AND POLITICAL PERSECUTION

3                     The appellant claimed to have been involved with the Kerala Catholic Youth Movement (‘KCYM’), the official youth body of the Catholic Church in Kerala, and also to have been a member of the Students Federation of India (‘SFI’), which is a student body associated with the Communist Party of India (‘CPI’).  

4                     In 1996, he claimed he took part in a demonstration against a bus fare price rise and he was attacked by members of the Bharathiya Janatha Party (‘BJP’).  He stated that, after this incident, he was ‘afraid to venture out of [my] parish’ and that he could not complete the draftsman training course he was undertaking at the time. Later in 1996, he began managing a bus service run by a relative and, because of his association with the CPI and the KCYM, he became the target of attacks from members of the BJP.

5                     Some years later, in 2002, BJP members vandalised a local church and that lead to an increase in tension.  To avoid trouble, the appellant moved to Dubai where he obtained work.  He remained there until 2005, but returned to India on frequent visits.

6                     Because of his association with CPI and his position as the local secretary of the Democratic Youth Federation of India (‘DYFI’), from 2006 until 2008, the appellant claimed that he was the subject of three attacks that occurred during the beginning of 2008.  During one of these attacks his close friend was killed.  He also claimed that he knows that ‘their next target is I’. 

7                     The appellant also claimed that he was being threatened by a private money leader from whom he borrowed money in order to pay for his wedding ceremony.  The appellant claimed that the money lender came to his house and threatened his wife with a machete and a sword.

8                     The appellant came to Australia in 2008 to attend World Youth Day.  While he was here, he made his application for a protection visa.

9                     In summary, the appellant claimed to fear religious and political persecution should he return to India. 

THE tribunal AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

10                  Based on his knowledge of the Catholic faith and the documents submitted by him, the Tribunal accepted that the appellant and his wife were members of the Latin Catholic Church in Kerala.

11                  However, because it did not accept the appellant was a credible witness, the Tribunal did not accept that he was an activist of the Catholic Church, or that he was an activist in the SFI or the CPI, or that he had been targeted by the BJP or persons acting on its behalf, or that he was a member of the DYFI and was its local secretary for about three years.  

12                  On this same basis, the Tribunal did not accept that the appellant was attacked at any time in 1996 or 2008, or that his house was attacked in 1996.   Further, the Tribunal concluded that the appellant would not become a religious or political activist if he were to return to India, not because of fear of persecution, but rather because the appellant was not a religious or political extremist in the past.

13                  The Tribunal did not accept that the moneylender the appellant feared was a BJP extremist and, therefore, the Tribunal did not accept that there was a Convention nexus with those fears.

14                  In summary, the Tribunal found that the appellant was not a credible witness and that he had embellished his claims in order to support his application for a protection visa.  It, therefore, rejected his claims of persecution for reasons of political and religious beliefs.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

15                  In his judicial review application to the Federal Magistrates Court, the appellant raised the following grounds:

(1)       Jurisdictional error

(2)       Breach of procedural fairness

(3)       Breach of natural justice.

16                  The Federal Magistrate found that there was sufficient material before the Tribunal to allow the Tribunal to reach the conclusions that it did about the credibility of the appellant’s evidence.  His Honour was also satisfied that the Tribunal had complied with ss 424A and 425 of the Migration Act 1958 (Cth) (‘the Act’).

17                  Having found no jurisdictional error, breach of natural justice, or breach of procedural fairness in the decision of the Tribunal, the Federal Magistrate accordingly dismissed the appellant’s application for judicial review.

the CONDUCT OF present APPEAL

18                  On 8 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 amounting to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal  

[Errors in original]

19                  When this matter was first listed before me in Sydney on 19 August 2009, the appellant sought an adjournment because of a health problem he claimed he had.  He produced a certificate from a doctor to support this claim.  Because the Minister could not point to any prejudice, I allowed a short adjournment of the matter to 14 September 2009.

20                  The adjourned hearing was conducted by videoconference facility link between Brisbane and Sydney.  At that hearing, the appellant appeared in person unrepresented but assisted by an interpreter.  Mr Baird appeared for the Minister.

IMPERMISSIBLE MERTIS REVIEW

21                  The appellant did not file any written submissions and his oral submissions were directed to the merits of the Tribunal’s decision.  The Minister filed a set of written submissions and relied upon those.

22                  The errors identified in both grounds of appeal (above) seek to challenge the factual conclusions the Tribunal reached, as to:

●          whether there was evidence to establish that the appellant was a refugee; and

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

23                  Even if there was 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 560 (at [137]).

24                  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, eg NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

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

26                  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

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

Associate:

Dated:         1 October 2009