FEDERAL COURT OF AUSTRALIA

SZNKP v Minister for Immigration and Citizenship [2009] FCA 1316

 Migration Act 1958 (Cth), ss 424A, 424A(1) and 424A(3)(a)

SZNKP v Minister for Immigation and Citizenship [2009] FMCA 812

Abebe v Commonwealth (1999) 197 CLR 510

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

SZCOS v Minister for Immigration and Citizenship [2008] FCA 570

SZNKP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 922 of 2009

REEVES J

13 November 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the amount of $3,350.00.

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

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 4 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 9 July 2007 (sic 2008).  On 21 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 harm from Muslims in Kerala as a Christian. He claimed that a Muslim girl that he had befriended at college had fallen in love with him and wanted to marry him. He claimed that she tried to make him elope with her and she threatened to commit suicide.

4                     The appellant claimed that in January 2007 he was taken and held by four Muslim men.  He stated that his brother searched for him and there was a fight between the brother’s group of Christians and the Muslim group.  He stated that the Communist Party negotiated his release.

5                     The appellant claimed that he then fled to Dubai where he stayed for some time, before travelling to Tamil Nadu when he was unable to renew his visa for Dubai.  He stated that he later returned to Kerala and married a Christian woman in October 2007.

6                     The appellant stated the Muslim girl committed suicide and in December 2007 he was arrested and accused of raping her, which it was claimed had led her to commit suicide.  He stated that he was beaten by the police officers, who were Muslim, and that a riot took place as the Muslims refused to allow a post mortem on the girl.  He stated that the police released him in order to stop the riots, however Muslim groups searched for him to take revenge.  He claimed that he would have been killed if he had not left India and would be killed if he returned.

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

7                     The Tribunal accepted that the appellant was a Catholic and that he lived in an area of Kerala where there was ongoing friction between Muslims and Christians.  However it found that the appellant was not credible; that he was an unreliable witness; and that he had fabricated his claims in order to obtain a protection visa.

8                     While the Tribunal was prepared to accept that the appellant may have been friendly with a Muslim girl at College, it did not accept that the relationship developed in the way he claimed.  The Tribunal found that when it questioned him about the relationship the appellant was evasive and equivocal about almost every aspect of his account.

9                     The Tribunal also found that the appellant was evasive about the dates of critical events, that he fabricated events, and that certain aspects of his evidence were vague, unconvincing and confused. The Tribunal rejected his claims that he had been harmed or targeted by connections of the Muslim girl he had refused to marry, or by the police who he claimed had arrested him and accused him of raping the girl, thereby causing her suicide.

10                  The Tribunal also considered whether the appellant would be persecuted by reason of his religion and activities as a Christian, finding that he would not face Convention-related persecution for these reasons, or any other Convention reason, if he were to return to India. 

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

11                  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.

12                  As the Federal Magistrate observed, these three grounds of review are general and unparticularised.  Indeed, it seems that the appellant sought to supplement them in oral submissions before her Honour by questioning the accuracy of the Tribunal’s findings: see [2009] FMCA 812 at [12] – [13].  In response, the Federal Magistrate attempted to explain to the appellant that merits review was not available to him, that credibility findings were a matter for the Tribunal par excellence, and that the Tribunal’s findings were open to it on the material before it, for the reasons it gave.

13                  Otherwise, her Honour was satisfied that the Tribunal specifically considered the appellant’s claims regarding the Muslim girl, as well as considering whether his religion and activities as a Christian might put him at risk, even though he had not directly raised this claim.

14                  Furthermore, her Honour concluded that there was nothing before the Court to support any claim of actual or apprehended bias, or to indicate any error in the procedural approach adopted by the Tribunal.

15                  As to the appellant’s submissions about s 424A of the Migration Act 1958 (Cth) (“the Act”), her Honour found that the Tribunal was not required to put its concerns about the credibility of the appellant’s evidence to him under that section, and nor was it required to put the country information it relied on to him, as that information came within the exception to s 424A(1) contained in s 424A(3)(a) of the Act.

16                  Finally, her Honour was satisfied that the Tribunal was not required, in the circumstances, to make further inquiries, or to further investigate the appellant’s claims.

17                  The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

the CONDUCT OF present APPEAL

18                  On 25 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]

19                  At the hearing of the appeal before me on 11 November 2009 the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Riley appeared for the first respondent.

20                  The appellant did not file an outline of written submissions and his oral submissions were limited to a request that he be given the opportunity to put more evidence before the Tribunal to attempt to persuade it to believe him.

21                  Mr Riley was content to rely upon the outline of written submissions that had earlier been filed on behalf of the Minister.

CONSIDERATION

22                  As with the grounds of review before the Federal Magistrate (see [12] above), the two grounds of appeal before me are extremely general and unparticularised.  Furthermore, whilst the first ground of appeal makes some attempt to identify error on the part of the Federal Magistrate, the second ground of appeal does not and is solely directed to the Tribunal’s decision.  It is trite to observe that an appeal to this Court is directed to correcting error on the part of the Federal Magistrate and not (at least directly) error on the part of the Tribunal.

23                  As is apparent on its face, the first ground of appeal seeks to challenge the factual conclusions the Tribunal reached as to the refugee status of the appellant under the Act.  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]).  As the Federal Magistrate apparently attempted to explain to the appellant, it is not the role of the Federal Magistrates Court, and nor is it the role of this Court, to interfere with 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] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  For these reasons, the first ground of appeal has no merit and must be rejected.

24                  The second ground of appeal appears to raise concerns about the application of the “real chance test”.  It is well established that the Tribunal was entitled to reject the appellant’s claims on credibility grounds and, having done so, was not required to proceed to apply the “real chance test”:  see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60] – [67], and SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 at [47] – [48] per Bennett J.  In this case, since the Tribunal found in quite clear terms that the appellant’s claims were not credible and fabricated, there was, therefore, no obligation on it to proceed to consider the application of the “real chance test”.  It follows that the second ground of appeal also has no merit and must be rejected.

CONCLUSION

25                  For these reasons this appeal must be dismissed.  I so order.  I also order that the appellant pay the first respondent’s costs fixed in the amount of $3,350.00.

Associate:

Dated:         13 November 2009