FEDERAL COURT OF AUSTRALIA

SZNPO v Minister for Immigration and Citizenship [2009] FCA 1257

SZNPO and SZNPP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 789 of 2009

STONE J

4 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs of the appeal.

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

1                     The appellants, who are citizens of India, arrived in Australia on 11 August 2008.  They applied for protection visas on 25 September 2008.  Their applications were refused in turn by a delegate of the first respondent and by the Refugee Review Tribunal.  An application for review of the Tribunal’s decision was dismissed on 15 July 2009; SZNPO v Minister for Immigration & Anor [2009] FMCA 738.  They now appeal to this Court.

2                     The second appellant’s claim for refugee status is contingent upon the claims made by her husband; she asserts no independent claim.  In these reasons I will therefore refer to the first appellant as “the appellant”. 

3                     The appellant claims that, after becoming involved in a campaign against the exploitation of child labour while in law school, he became actively engaged in fighting the practice in the Indian state of Gujarat.  According to the appellant he went to villages to speak to the parents about the law prohibiting the use of child labour.  He claimed that this involvement provoked hostility from contractors who used child labour and, in June 2007, one such contractor arrived in the village with a group of armed men.  The appellant was able to escape but said he did not report the incident.  He explained that a child of the family he was visiting worked for the contractor in question and therefore the family would not have supported his complaint. The appellant referred to other violent incidents including, in May 2008, being confronted by a contractor and several farmers who threatened to kill him if he continued campaigning.  He also claimed that on another occasion he fell off his motorbike in the course of escaping from an attempted attack.  As a result of these events, the appellant said that he feared for his life and chose to leave India.

THE TRIBUNAL DECISION

4                     The Tribunal was not satisfied that the appellant was an activist working in the area of child labour: his knowledge of the subject was minimal which was not consistent with his having been active in this area.  In addition the appellant had not taken any obvious or immediate steps to protect himself from the harm he claimed to have feared.  Such steps, the Tribunal added, might have included moving away from the family home, staying away from his workplace, reporting the threats to the police or seeking advice about protection from other non-government agencies who were working to combat child labour.  The appellant had not taken any of these steps.

5                     Because the Tribunal did not believe that the appellant was active in opposing child labour, it found his claims to fear harm from two separate contractors to be implausible.  As the Tribunal did not accept that the appellant was targeted for this reason, it concluded that he did not have a well founded fear of Convention-related persecution in India.

THE FEDERAL MAGISTRATE’S DECISION

6                     Before the Federal Magistrate the appellant raised two grounds of review.  In essence, the appellant submitted that the Tribunal had erred in that:

(a)                it misapplied the express and implied meaning of the terms ‘well founded fear’ and ‘refugee’ as used in the Convention.  The Tribunal also erred in adopting an unduly harsh approach to the ‘well founded fear’; and

(b)               identified a wrong issue, asked itself the wrong questions, failed to take into account a relevant consideration and did not accept any oral or written evidence.

7                     The Federal Magistrate pointed out that by refusing to accept that the appellant had been actively involved in opposing child labour, the Tribunal had rejected the essential element of his claim.  His Honour stated that the issue of the appellant’s credibility was a matter for the Tribunal and that he was satisfied that the findings made by the Tribunal were  open to it. His Honour therefore held that the first ground must be rejected.

8                     Secondly, his Honour found that there was no evidence to support the claim that the Tribunal had identified the wrong issue. His Honour said, at [22], that the Tribunal was fully aware of the claims made by the appellant to fear persecution on the ground of political opinion arising from his involvement in a campaign against the exploitation of child labour.  His Honour was also satisfied that there was no evidence that the Tribunal had asked itself the wrong question. His Honour noted that the Tribunal was not required to accept the appellant’s claims at face value but had an obligation to test his factual claims. His Honour was also satisfied that the Tribunal had not ignored any relevant material or evidence. The Federal Magistrate found, at [25] that the Tribunal did consider the evidence on which the appellant relied but attached no weight to it.  His Honour also held, at [27], that it was unnecessary for the Tribunal to consider relocation as it did not accept that he had a well-founded fear of persecution for a Convention reason.

9                     Having found no evidence of a jurisdictional error in the decision of the Tribunal, the Federal Magistrate dismissed the appeal.

THIS APPEAL

10                  The notice of appeal filed in this Court on 3 August 2009 raises claims which can be summarised as follows.  The Tribunal erred in that it: 

1.                  misapplied the express and implied meaning of the terms ‘well founded fear’ and ‘refugee’ as used in the Convention;

2.                  failed to apply the real chance test;

3.                  failed to identify the motivation for the persecution;

4.                  identified the wrong issue and asked itself the wrong questions;

5.                  failed to take into account relevant material and ignored the appellant’s oral and written evidence; and,

6.                  denied the appellant procedural fairness and natural justice.

11                  The issues raised by these grounds of appeal in this Court are the same as the issues considered by the Federal Magistrate.  The appellant’s written submissions filed on 27 October 2009 support this view as did his oral submissions on appeal.  The appellant’s submissions, both oral and written, reiterate claims made before the Tribunal, but do not address the fundamental issue of the Tribunal’s adverse credibility finding.  As the Federal Magistrate noted at [21]:

The question of credibility is a matter for the Tribunal.  Of course there must be evidence before the Tribunal upon which it came [sic] make a finding adverse to an applicant’s credibility …

12                  As long as there is such evidence then the question of an applicant’s credibility is for the Tribunal not for the Federal Magistrates Court or for this Court.

13                  Ground one of the appeal before me is identical in substance to the first ground of review raised by the appellant before the Federal Magistrate.  I have already summarised his Honour’s reasons for dismissing this ground.  I have reviewed his Honour’s reasons on this point and can find no error in them.

14                  The remaining grounds raised in the notice of appeal were all included in the second ground of review before his Honour below.  His Honour said, at [22]:

The applicants’ second ground contains a multiplicity of grounds including identifying the wrong issue, asking itself the wrong question, failing to consider relevant materials, not accepting oral and written evidence and made a mistake in understanding the case.  The particulars in the applicants’ submissions do not necessarily support all of those claims, even if such a claim if made out were to constitute jurisdictional error.  There is no evidence that the Tribunal identified the wrong issue.

The Federal Magistrate went on to deal with the other elements of this expansive ground of review and concluded that none of these grounds could sustain a finding of jurisdictional error. 

15                  At the appeal the appellant appeared for himself assisted by an interpreter.  His submissions were diffuse and difficult to understand.  They amounted to little more than rearguing his factual claims and inviting me to make findings of fact different from those made by the Tribunal.  Matters of fact and the weight to be attributed to evidence are peculiarly the province of the Tribunal and not within this Court’s jurisdiction. 

16                  The appellant made two other points.  First he claimed, in his written submissions, that the Tribunal failed “to analyse” properly the harm that might befall him should he return to India.  He was not, however, able to expand on the nature of the Tribunal’s analytic failure but merely repeated his invitation for the Court to make findings of fact.  The second point was his submission that the Tribunal failed to consider the question of relocation within India.  As I explained to the appellant at the hearing, the question of relocation does not arise unless Convention related persecution has been established.  There is no error in failing to consider the question where the Tribunal makes, as here, an unequivocal finding that no such persecution has been shown.  Of course, a tribunal may consider the issue and make an independent finding in relation to relocation.  This is particularly so where the evidence concerning persecution may be more equivocal than here.  In this case, however, the Tribunal’s finding was unequivocal and there was no obligation to consider relocation.

Costs

17                  At the conclusion of the hearing, after I had announced my decision that the appeal must be dismissed with costs, the respondent sought to make an application for costs in a fixed amount.  The application was supported by an affidavit which the respondent sought to file in Court.  The appellant was not served with a copy of this affidavit before the commencement of proceedings.  The appellant is not legally trained and does not speak English and, in my view, it would not have been fair to expect him, even with the assistance of an interpreter, to comprehend the basis on which the sum sought was calculated and to respond immediately to the application.  When I expressed these views the respondent elected not to press the application.

18                  In cases such as this it may well be that there is much to be said for a fixed costs order.  I can understand the respondent’s concern that an application made prior to an appeal being dismissed might seem presumptuous. I see no reason, however, why the respondent should not serve the affidavit on the appellant prior to the hearing, at the same time informing the appellant that, if successful in the appeal, the respondent proposes to make an application for fixed costs on the basis set out in the supporting affidavit. 

conclusion

19                  For the reasons given above the appeal must be dismissed with costs.

Associate:

Dated:         6 November 2009