FEDERAL COURT OF AUSTRALIA

SZNHS v Minister for Immigration and Citizenship [2009] FCA 1254

 MIGRATION – appeal from Federal Magistrate – no appellable error – appeal dismissed

Migration Act 1958 (Cth), s 424A, s 424A(3)(a) 

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572

Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

SZNHS v Minister for Immigration and Citizenship [2009] FMCA 873

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330  

SZNHS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 978 of 2009

BARKER J

4 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant to pay the first respondent’s costs fixed in the sum of $2825.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
            The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

appeal

1                     This is an appeal from a judgment of a Federal Magistrate given on 20 August 2009. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) handed down on 19 February 2009 which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a protection visa.

prior applications

2                     The appellant, a citizen of India, arrived in Australia on 28 June 2008 and applied for a protection visa (Class XA) on 6 August 2008.  The appellant claimed that he was the District Secretary of the Pattali Makkal Katchi (PMK) party and a Muslim association known as Himayathul Islam Association (HIA) which association was responsible for fund raising and maintenance of a new mosque in his home town of Adirampattinam in the state of Tamil Nadu.

3                     The appellant claimed to fear harm from an individual, who may simply be referred to here as G, and his colleagues because they were opposed to the construction of the mosque, because of the appellant’s charity work with the poor and because the appellant opposed G’s illegal liquor business. The appellant further claimed that he was severely beaten by members of the BNP (also referred to as BHP), Hindu Front and RSS and on another occasion members of the BNP attempted to kill him.  He claimed that he was denied protection from the police.

4                     In a decision dated 24 October 2008, a delegate of the Minister refused the appellant’s application for a protection visa.  The delegate was not satisfied that the appellant was a member of either PMK or HIA or that he had the public profile he claimed so as to make him of interest to members of other political parties.  The delegate considered that the appellant would not be at risk of persecution for his claimed political activities and associations with either the PMK or HIA.  Additionally, the delegate considered that the appellant could reasonably relocate within India.  The delegate therefore concluded that the appellant did not have a well-founded fear of persecution for a Convention reason.

Tribunal’s findings

5                     On 17 November 2008, the appellant lodged with the Refugee Review Tribunal an application for administrative review of the decision of the delegate.  On 12 December 2008, the Tribunal wrote to the appellant inviting him to attend a hearing before the Tribunal to give evidence and present arguments in relation to his claim.  The appellant provided a response to the hearing invitation and attended the scheduled hearing during which he gave oral evidence and provided documents to the Tribunal.

6                     In its decision dated 18 February 2009, the Tribunal found that the appellant was not a credible witness.  The Tribunal found that the appellant’s evidence was ‘lacking in detail’, ‘vague,’ ‘implausible’, ‘disjointed’ and ‘irrational’.

7                     The Tribunal made the following findings in respect of the appellant:

a)      He is a citizen of India: [70];

b)      He is a Muslim and lived with his family in Adirampattinam in Tamil Nadu: [71];

c)      He had some involvement in HIA, but his role was minor and did not attract any adverse attention from G or religious or political groups by reason of his involvement in HIA: [72]-[73];

d)      He was not threatened by G and his colleagues in 2007 as claimed: [74]-[75];

e)      He was not an office bearer of the PMK and does not face any chance of persecution for reason of his membership or support of the PMK: [78]-[79];

f)        He had a dispute with G in 2008 about business and civil matters, which may have led to threats by men associated to G, but this was not for reasons of his religion, his political opinion or his charitable work: [80]; and

g)      He would not face any chance of mistreatment if he returned to India now or in the foreseeable future: [76].

8                     Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention-related reason: [81].

Decision of the Federal Magistrate

9                     By amended application dated 15 June 2009, the appellant sought judicial review of the Tribunal’s decision.

10                  The Federal Magistrate considered each of three grounds raised by the appellant and rejected the appellant’s application on all bases: SZNHS v Minister for Immigration and Citizenship [2009] FMCA 873.

11                  The first ground alleged that the Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) (Act) by failing to invite the appellant to comment on independent country information to which it referred.  The Federal Magistrate rejected this ground because of the operation of s 424A(3)(a) of the Act: [14].

12                  The second ground alleged that the Tribunal failed to give proper (if any) weight to the documents upon which the appellant relied.  The Federal Magistrate rejected this ground as an impermissible invitation to the Court to undertake merits review: [15].

13                  The third ground challenged the Tribunal’s finding that it did not consider that the appellant faces a real chance of persecution for a Convention based reason.  The Federal Magistrate rejected this ground, again, on the basis that it sought an impermissible merits review of the appellant’s claim: [16].

14                  The Federal Magistrate concluded that the matters raised by the appellant did not disclose jurisdictional error on the Tribunal’s part([17]) and dismissed the application for judicial review.

appeal to this Court

15                  By notice of appeal dated 7 September 2009, the appellant appeals from the judgment of the Federal Magistrate given on 20 August 2009 and specifies the following three grounds

1.       The Refugee Review Tribunal failed to exercise its duty under the Migration Act. The Tribunal did not give me notice under section 424A of the Migration Act 1958 about the independent information.

Particulars:

A.      The Tribunal failed to provide me notice under section 424A of the Migration Act that:

(i)      I have considered the independent information which indicated that it is relatively easy to obtain false documents in India.

2.       The Refugee Review Tribunal failed to put weight to the documents that I supported before the Tribunal in support of my claim:

Particulars:

A.      The Tribunal failed to put weight to the document that:

(i)      I have not given any weight to the medical certificate provided by the applicant. The applicant may have been involved in an incident in May 2008 in which he was injured however, I do not accept that it was Convention related.

3.       The Refugee Review Tribunal failed to realise the reality of chance of persecution in the context of applicants’ particular circumstances:

Particulars:

A.     There was no evidence to support the Refugee Review Tribunal’s finding that:

(i)      I do not accept that the applicant faces a real chance of persecution for reasons of religion, political opinion, membership of any particular social group, or any Convention based reason should he return to India now or in the foreseeable future.

16                  The grounds of appeal raised by the appellant in the notice of appeal are identical to those raised before the Federal Magistrate and do not identify how the Federal Magistrate erred.  I infer, however, that the appellant wishes to contend that the Federal Magistrate erred in law by not making such findings in the proceeding below.

Ground One – s 424A

17                  Section 424A provides:

(1)     Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)     The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)   The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)     This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)     that is non disclosable information.

18                  Section 424A(3)(a) has been held on a number of occasions to exclude from the operation of s 424A independent country information of the type referred to by the Tribunal: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.  In QAAC of 2004 the Full Court of the Federal Court held that the Tribunal was not under an obligation to provide country information to the applicant which was not specifically about them or another person by reason of s 424A(3)(a).  I am bound by those decisions unless the High Court rules otherwise.

19                  The country information relied on by the Tribunal and referred to by the appellant was of this character.  It was about the availability of false documentation in India.

20                  As a result, the Federal Magistrate correctly found at [14] the Tribunal did not commit any jurisdictional error.  No error in the Federal Magistrate’s decision is discernible.

21                  Accordingly, this ground fails.

Ground Two – Weight given to Documents

22                  The second ground raised by the appellant asserts that the Tribunal did not give any weight to the appellant's documents.

23                  The appellant’s documents were in fact considered by the Tribunal (see [27], [50], [53], [78] of the Tribunal’s decision record).  The weight to be attached to them was a matter for the Tribunal as the sole arbiter of the facts.  This allegation amounts to an impermissible invitation to this Court to undertake merits review: see generally NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

24                  In its reasons for decision, the Tribunal carefully considered each of the appellant’s supporting documents ([27]), attributed weight to that material and made factual findings as it was required to do. 

25                  The Tribunal made specific findings about the purported letter from the President of the HIA ([72]), the letter from the PMK and the membership card([78]).  The Tribunal identified inconsistencies in the appellant’s evidence at hearing and the contents of the supporting documents.  On this basis, the Tribunal made findings regarding his membership in the HIA and PMK and had regard to independent country information about the ease with which false documents can be obtained in India([78]).  The Tribunal considered the medical certificate submitted by the appellant and, whilst satisfied that the appellant may have been attacked and injured in 2008, the Tribunal did not accept that the reasons for the attack were Convention related ([80]).

26                  The Tribunal’s finding that the appellant’s claims were unrelated to the Refugees Convention was a finding of fact that correctly emphasises that the reason for feared harm must be found in the ‘singling out’ of one or more of the five attributes expressed in the Convention definition.  See Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, McHugh and Gummow J at 28; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [49] – [56].  No error is revealed in the Tribunal’s approach.

27                  The Federal Magistrate dismissed this ground on the basis that it is the task of the Tribunal, and not the Court, to make findings as to the weight given to documents ([15]).  No error of law is revealed in the Federal Magistrate’s approach.

28                  Accordingly, this ground fails.

Ground Three – Persecution

29                  This ground alleges that there was no evidence to support the Tribunal’s finding that the appellant faces a real chance of persecution in India now or in the foreseeable future.

30                  A fair reading of the Tribunal’s decision record shows that the Tribunal understood the nature of, and set out a reasoned analysis of, the appellant’s claims; explored those claims with the appellant at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence, present documents and make submissions at the hearing.  The Tribunal then made factual findings as it was required to do. 

31                  The Tribunal rejected the appellant’s claims because it doubted the veracity of the appellant’s evidence. As it is for the appellant to enable the Tribunal to achieve a state of positive satisfaction about his claims, the fact that this did not occur in this case does not establish any error on the part of the Tribunal: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, Kirby J at 405, [78] and the authorities there referred to.

32                  The Federal Magistrate rejected this ground on the basis that it is an allegation seeking merits review of the Tribunal’s decision([16]). No error is revealed in the Federal Magistrate’s approach.

33                  Accordingly, this ground fails. 

Conclusion

34                  No jurisdictional error is manifest in the decision of the Tribunal and the approach taken by the Federal Magistrate in dismissing the appellant’s application in the Court below reveals no appellable error. 

35                  The Court therefore orders:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs to be taxed if not agreed.

Associate:

Dated:         4 November 2009