FEDERAL COURT OF AUSTRALIA

SZNNI v Minister for Immigration and Citizenship [2009] FCA 1232

SZNNI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 749 of 2009

COLLIER J

2 NOVEMBER 2009

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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 the decision of Nicholls FM delivered on 1 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 March 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 18 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 3 December 2008. On 30 December 2008 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed to have a well-founded fear of persecution on the basis of his religion as a Catholic and his involvement in the Kerala Catholic Youth Movement (KCYM). He claimed that he was the president of the KCYM Church Committee of his local church from 2002 to 2005 during which time he was also a member of the Church Executive Council. He claimed that he faced threats from the Communist Party of India (Marxist) (CPI(M)) and from the Democratic Youth Federation of India (DYFI), the youth wing of the CPI(M). He stated that the DYFI could not get a foothold in his area as most of the youth were associated with the KCYM and that he and his associates were physically assaulted by members of the DYFI on many occasions. In particular he claimed that he was assaulted in October 2002 while waiting near a bus stop, sustaining spinal injuries and requiring treatment in hospital for 28 days. He also claimed that he was attacked in March 2008 by members of the CPI(M), which resulted in him being hospitalised for 15 days.

4                     The appellant further claimed that he was detained by the police on two separate occasions. On the first occasion, in September 2004, he was detained for 6 days and tortured for taking part in a protest after the murder of a Catholic priest the previous month. The second arrest occurred in July 2007 following protests against a book being published by the Kerala authorities.

5                     The appellant claimed that he could not return to India as there would be no protection available to him because the CPI(M) was ruling Kerala.

PROCEEDINGS BEFORE THE TRIBUNAL

6                     The Tribunal accepted that the appellant was a Christian and had held positions in his local church. However it was not otherwise satisfied that he was a witness of truth. In making this finding the Tribunal noted that the appellant had not included any details of the claimed attack on him in March 2008 in his protection visa statement. The Tribunal was of the opinion that if he had been seriously assaulted as he claimed, he would have included this in his original application.

7                     The Tribunal also found that, in relation to the appellant’s claimed arrest in 2007, the independent evidence before it did not suggest that any persons were arrested or charged for taking part in that demonstration or any other demonstration in July 2007. The Tribunal felt that if such an incident had occurred some mention would have been made in the independent evidence that gave extensive coverage to the views of the Catholic Church. The Tribunal also noted that the appellant did not include any details about the July 2007 incident in his application, finding that it did not ring true that he would omit such vital information from his application. The Tribunal concluded that his claims of arrest were a late invention made in order to bolster his claims.

8                     Finally, the Tribunal noted that there was no independent evidence to support his claim that police in Kerala unofficially detain people by taking them to an unknown place and assaulting them.

9                     The Tribunal concluded that the appellant was not a witness of truth and rejected all of his claims to fear persecution.

APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT

10                  On 24 April 2009 the appellant filed an application for judicial review of the Tribunal’s decision. The appellant filed an amended application on 9 June 2009, contending that:

1.                  The Tribunal denied him procedural fairness by reaching adverse conclusions as to his credibility.

2.                  It was open to the Tribunal to find that he was a refugee within the meaning of the Act. The Tribunal failed to afford him the benefit of the doubt.

3.                  The Tribunal failed to give him particulars of the independent information it relied on.

4.                  The Tribunal failed to take into account a relevant consideration, namely the appellant’s well-founded fear of persecution for being a Christian activist.

5.                  The Tribunal failed to investigate his claims and its decision was affected by actual bias.

11                  The Federal Magistrate was satisfied that the Tribunal gave cogent reasons for its finding that the appellant was not a witness of truth, which was based on inconsistencies and omissions in his evidence as well as a lack of independent evidence to support his claims. His Honour found that the Tribunal’s findings were open to it while also noting that merits review was not available to the appellant. In relation to the appellant’s claims regarding procedural fairness, his Honour noted that the determinative issue was that the appellant was not a witness of truth and that the Tribunal did not believe his claims to fear persecution. His Honour found that the Tribunal did sufficiently indicate to the appellant that his credibility was at issue and invited him to expand upon the parts of his claims that it had difficulty accepting. His Honour was satisfied that the Tribunal complied with its obligations pursuant to s 425 of the Migration Act 1958 (Cth) (“the Act”).

12                  In relation to the appellant’s second ground that the Tribunal failed to give him the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the appellant’s claims were plausible, his Honour found that the Tribunal plainly did not entertain the possibility that the bulk of the appellant’s claims were plausible. His Honour was satisfied that in the circumstances there was no real doubt as to the conclusion and the findings which formed it.

13                  Thirdly, his Honour stated that independent country information came within the exception to the s 424A(1) obligation contained in s 424A(3)(a) of the Act. His Honour noted that, in any event, certain country information was put to the appellant during the hearing. His Honour was otherwise satisfied that the Tribunal put to the appellant the information that it considered would be the reason or part of the reason for affirming the decision under review at the hearing pursuant to s 424AA of the Act.

14                  In relation to the fourth ground, his Honour was satisfied that the Tribunal considered each claim made by the appellant and considered each aspect of those claims, dismissing the ground as a request for an impermissible merits review.

15                  Fifthly, his Honour stated that there was no particular reason for the Tribunal to conduct further enquiries and that it was not required to make out the appellant’s case for him. His Honour stated that it was for the appellant to put forward any evidence or material that he wished the Tribunal to take into account and it was for the Tribunal to decide whether the claim was made out. His Honour also stated that there was no evidence before the Court on which an allegation of bias could be made out.

16                  Finally, his Honour considered the appellant’s claim that the Tribunal did not properly address the risk of him experiencing harm in the future. His Honour found that the Tribunal had properly discharged its duties in this regard, and that there was no failure on its part to correctly identify and properly apply the relevant legal principles.

17                  Having found no jurisdictional error in the Tribunal decision, Nicholls FM dismissed the appellant’s application.

APPEAL TO THIS COURT

18                  By Notice of Appeal filed on 22 July 2009, the appellant raised the following grounds of appeal against the decision of Nicholls FM:

1.         The single judge of the Federal Magistrate Court in his Honour’s judgment delivered on the 1 July 2009 failed to error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.

2.         The Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of my circumstances and consequences of the claim.

19                  At the hearing of the appeal before me the appellant was self-represented, and made no oral or written submissions.

20                  The Minister was represented by the Australian Government Solicitor.

21                  The grounds of appeal advanced by the appellant are regrettably vague and unparticularised. It is difficult to identify specific grounds of appeal other than that the appellant is aggrieved at the decisions of the Tribunal and the Federal Magistrate, and that the appellant considers the Tribunal decision unjust because the Tribunal did not find in his favour.

22                  On reviewing the decision of the Tribunal it is clear that the Tribunal considered the case advanced by the appellant in considerable detail. The Tribunal’s reasons for decision contain extensive and careful analysis by the Tribunal of publicly available information as well as evidence tendered by the appellant. The Tribunal clearly accepted some evidence given by the appellant (for example that he was a member of the KCYM) but did not accept, for reasons given by the Tribunal, that he was a witness of truth. Findings of fact are matters for the Tribunal and are not subject to review by the Court: NAHI v Minister for Immigration and Multicultural Affairs (2004) FCAFC 10 at [10]. Findings in respect of the credibility of the appellant are matters for the Tribunal: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423.

23                  In my view the grounds of appeal from the decision of the Federal Magistrate cannot be substantiated. The appeal should be dismissed with costs.

Associate:

Dated:         2 November 2009