FEDERAL COURT OF AUSTRALIA

SZNKF v Minister for Immigration & Citizenship [2009] FCA 1455

Migration Act 1958 (Cth) s 424

SZNKF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ANOR

NSD 1042 of 2009

EMMETT J

25 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant 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                          This appeal has been brought from orders of the Federal Magistrates Court made on 2 September 2009.  On that day, the Federal Magistrates Court dismissed an application by the appellant for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Federal Magistrates Court considered that the appellant failed to establish that there was any jurisdictional error on the part of the Tribunal in making the decision, the review of which was sought in the Federal Magistrates Court. 

2                          The appellant is a citizen of India and arrived in Australia in July 2008.  In September 2008, he lodged an application to the first respondent, the Minister for Immigration & Citizenship (the Minister) for a protection visa under the Migration Act 1958 (Cth) (the Act).  The appellant claimed to fear persecution from Muslim extremists by reason of his Hindu faith and marriage to a Muslim woman.  The Minister’s delegate refused the appellant’s application for a protection visa and he then sought review of that decision by the Tribunal. 

3                          The appellant was invited to attend a hearing before the Tribunal, to take place on 20 February 2009.  By letter dated 28 January 2009, the Tribunal put to the applicant, for his comment, information that might be the reason, or part of the reason, for affirming the delegate’s decision.  The appellant was invited to provide his comments by 20 February 2009.  By another letter of the same day, the Tribunal invited the appellant to provide additional information consisting of full details of all his residences and employment prior to entry to Australia.  He was requested to provide that information by 20 February 2009. 

4                          On 6 February 2009, the Tribunal received a request from the applicant for an extension of time for his comments and for the proposed hearing in the light of the death of his mother on 2 February 2009.  The Tribunal replied to the appellant on 6 February 2009, saying that the Tribunal had agreed to his request for an adjournment and that the hearing had been rescheduled for 6 March 2009.  The appellant attended the Tribunal for a hearing on 6 March 2009 and produced documents in support of his application for review. 

5                          The Tribunal found that the appellant was not a credible witness, that many aspects of his evidence were vague and that there were significant inconsistencies between his oral evidence and his written claims.  However, the Tribunal did not consider that inconsistencies between the appellant’s oral evidence to the Tribunal and to the delegate were a reason, or a part of the reason, for affirming the delegate’s decision. 

6                          The Tribunal set out its concerns with respect to the appellant’s evidence in a number of respects.  In particular, the Tribunal referred to inconsistencies and differences in the appellant’s oral and written evidence about his past employment and the incorrect information in his protection visa application.  The Tribunal considered that the appellant had intentionally provided inconsistent information about his past employment and deliberately sought to mislead the decision-maker.

7                          The Tribunal concluded that the appellant was untruthful in relation to evidence about his circumstances and threats that he claimed he had received after he returned to India from the United Arab Emirates.  The Tribunal also had regard to inconsistencies in the appellant’s oral and written claims about what occurred and where he and his wife lived after their marriage.  The Tribunal considered that the appellant had been untruthful with respect to claims that he had been attacked in August 1996.  The appellant had been unable to provide a meaningful explanation as to why he had not been attacked since 1997, notwithstanding that he said that those who wanted to harm him knew where he lived.

8                          The Tribunal also had regard to the fact that the appellant remained in India until 2008, despite the continuous persecution that he claims to have suffered.  He had claimed that he had lived in the United Arab Emirates from 1994 to early 2005 in order to avoid harassment.  The Tribunal considered that a person who had been subjected to the level of intimidation and threats alleged by the appellant would have a genuine fear of such harassment but that in the light of his conduct it was not satisfied that he had such a genuine fear of persecution.

9                          The appellant sought review of the Tribunal’s decision by a proceeding commenced in the Federal Magistrates Court on 6 April 2009.  He filed an amended application on 17 June 2009.  The Federal Magistrates Court considered the grounds raised in both the original application and the amended application.  Each of the grounds is dealt with in the reasons of the Federal Magistrates Court.  However, the notice of appeal filed in the Federal Court on 21 September 2009 does not identify any relevant aspect of the reasons of the Federal Magistrates Court that are said to be erroneous. 

10                        The notice of appeal simply asserts that the Federal Magistrates Court failed to consider the grounds of review that an error of law had been made by the Tribunal in failing to comply with s 424 of the Act.  That ground was particularised by an assertion that at the hearing the Tribunal invited the appellant to give information additional to that which the Tribunal had obtained and that the invitation was not given in accordance with the Act. 

11                        No written submissions were filed in the Court by the appellant.  The appellant appeared in person without any legal representation when the appeal was called on for hearing.  However, he had the assistance of an interpreter.  When invited to address the Court on the appeal, the appellant said that his problem before the Tribunal had not been properly considered by the Federal Magistrates Court.  He did not enlarge on that assertion, except to say that he had not been given a clear picture as to how and what evidence he should give to the Tribunal.  He complained that the Tribunal did not specify what it required from him.  He also asserted that he had not been in a stable mental mood following the death of his mother.  That last matter was adverted to by the Federal Magistrates Court, notwithstanding that there was no ground outlined in either the original application or the amended application, based upon failure to give the appellant an appropriate adjournment.

12                        The ground of appeal is effectively meaningless in the absence of any further particulars.  It may not be entirely coincidental that the proposed notice of appeal in an earlier proceeding dealt with by the Court today was in identical terms to the appellant’s notice of appeal.  However, I place no weight on that possible coincidence. 

13                        Nothing has been advanced to suggest that there was any error on the part of the Federal Magistrates Court.  I have considered the reasons given by the Federal Magistrates Court and on their face they appear to be without error.  The appeal must be dismissed.

Associate:

Dated:         7 December 2009