FEDERAL COURT OF AUSTRALIA

SZNLQ v Minister for Immigration and Citizenship [2009] FCA 1312

Migration Act 1958 (Cth), ss 424(2), 424A, 424A(1), 424A(3),  424AA, 425

SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51

SZNLQ v Minister for Immigration & Citizenship [2009] FMCA 774

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Abebe v Commonwealth (1999) 197 CLR 510

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

SZNLQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 909 of 2009

REEVES J

13 november 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 5 August 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 6 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 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 PERSECUTION

3                     The appellant claimed to fear persecution from Hindu extremists and members of the Rashtriya Swayamsevak Sangh (“RSS”) because of his involvement in the Kerala Catholic Youth Movement (“KCYM”) and welfare work with Hindus and others.

4                     The appellant claimed that he was the president of the KCYM and as such he was accused by Hindu extremists of converting Hindus to Christianity. He claimed that he and some colleagues were attacked by members of the RSS in April 2006, and again in May 2006 and August 2006.  He claimed that he went to the police however they did not follow up on his complaints.

5                     The appellant claimed that he fled to Tamil Nadu, however he was followed there and attacked, so he then fled to Bhopal.  However the RSS learned of his whereabouts and he was forced to move to Bangalore, then Mumbai and then Warda village in Maharashtra.

6                     The appellant stated that he was advised about World Youth Day in Sydney and arranged to come to Australia.

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

7                     In the Tribunal’s view, the appellant’s evidence was confused and piecemeal and he was markedly evasive about his activities beyond 2006.  The Tribunal found that the appellant’s comments and responses to the matters put to him by the Tribunal concerning evidence it had obtained regarding his employment history, to be unconvincing.  The Tribunal was of the opinion that the appellant’s evidence as to his past residency and employment was unreliable, which called into question his overall credibility.

8                     However, the Tribunal accepted the appellant’s claims regarding his active involvement in the church and some aspects of his employment up to 2006.  It also accepted that the appellant was the president of the KCYM, but found that his profile did not extend beyond the Catholic youth community in Trivandrum because of the evidence the Tribunal had obtained from the Department of Foreign Affairs and Trade (“DFAT”).

9                     The Tribunal also noted a number of serious concerns it had with the appellant’s evidence which led it to conclude that he had not suffered persecution, or any related harm, in the past and that his refugee claims were not truthful. It noted that: the appellant seemed unaware of the experiences of his counterparts and others; his evidence regarding his flight and resettlement in other Indian states was unbelievable; there was strong evidence to indicate that the appellant lived in Kerala right up to the time of his departure from India; his claim to have returned to Kerala in 2008 was inconsistent with his claim to fear harm there; and, the timing and nature of his travel to Australia was pre-planned and unhurried and was inconsistent with the urgency that would indicate a genuine flight from persecution.

10                  Finally, the Tribunal was satisfied that adequate and effective State protection was available should the appellant require it in the future.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

11                  The appellant filed an application for judicial review in the Federal Magistrates Court on 19 April 2009, which contained the following grounds:

1.                  Jurisdictional error

2.                  Breach of procedural fairness;

3.                  Breach of natural justice.

12                  In relation to the second and third grounds, the Federal Magistrate found that the Tribunal’s decision was based on conclusions arising out of information which the appellant gave to the Tribunal, including, in response to two notifications given to the appellant under s 424AA of the Migration Act 1958 (Cth) (“the Act”), and on independent country information.  His Honour was satisfied that such information either came within the exclusions found in s 424A(3), or arose out of the Tribunal’s satisfaction of its obligations under s 424A(1) of the Act, by way of its oral notifications pursuant to s 424AA of the Act.  His Honour was therefore satisfied that the Tribunal complied with its obligations under s 424A of the Act.

13                  Further, his Honour was satisfied that the dispositive issues under review were put to the appellant at the hearing as required by s 425 of the Act.   His Honour also found that the request for information from DFAT could not be construed as a request pursuant to s 424(2) of the Act, relying upon SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51.

14                  Finally, his Honour found that, in the circumstances, there was no obligation on the Tribunal to conduct further inquiries of Father Gomez, who the appellant claimed (in oral submissions) could have corroborated his allegations. His Honour was satisfied that the Tribunal gave consideration to the letter from Father Gomez but found that it could not overcome the weight of the other evidence that lead it to conclude the appellant’s claims were not credible.

15                  The Federal Magistrate accordingly dismissed the application for want of jurisdictional error.

the CONDUCT OF present APPEAL

16                  On 24 August 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]

17                  At the hearing of the appeal before me on 10 November the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Mitchelmore appeared for the first respondent.

18                  In his oral submissions, the appellant’s main concern was the failure of the Tribunal to contact Father Gomez when, he claimed, it had contacted everyone else.  This, he said, was unfair to him.

19                  Ms Mitchelmore relied upon the outline of written submissions that had been filed on behalf of the Minister.  In response to the appellant’s oral submissions, she pointed to the Federal Magistrate’s conclusions that there was no evidence that the appellant had requested the Tribunal to contact Father Gomez (at [2009] FMCA 774 at [26]) and that, in any event, the Tribunal had clearly considered Father Gomez’s letter and found that it could not overcome the weight of the other evidence supporting the adverse conclusions the Tribunal had reached about the appellant’s credit (see [2009] FMCA 774 at [27]).

20                  Finally, on this aspect, Ms Mitchelmore submitted that, in any event, there was no obligation or duty upon the Tribunal to make such inquiries, relying upon Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”).

CONSIDERATION

21                  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.

22                  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]).

23                  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 & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].

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

25                  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.

26                  This conclusion applies equally to the issue raised by the appellant in his oral submissions before me about the Tribunal’s failure to make inquiries of Father Gomez.  This is all the more so when one takes into account the recent decision of the High Court in SZIAI where the Court observed:  It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction:  see at [25].  Thus, in this case, even if one were to put aside the absence of any evidence of a request by the appellant, the Tribunal’s conclusion that Father Gomez’s evidence did not overcome the Tribunal’s conclusions that the appellant’s refugee claims were not truthful, disposes of any suggestion that the appellant could bring herself falls within the exception identified by the High Court, such that the Tribunal’s failure to inquire of Father Gomez could constitute jurisdictional error.

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: 13 November 2009