FEDERAL COURT OF AUSTRALIA

SZNLV v Minister for Immigration and Citizenship [2009] FCA 1490

SZNLV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1035 of 2009

SPENDER J

24 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent of and incidental to the appeal, to be taxed if not agreed.

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 from the judgment of Emmett FM, given on 28 August 2009 in Sydney. 

2                     The appellant is a male citizen of India born in 1987.  He claimed to fear persecution from the Communist Party of India, and its student organisation, the Students Federation of India.  He arrived in Australia on 8 July 2008. 

3                     On 21 August 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship.

4                     A delegate of the first respondent refused the application for a protection visa on 19 November 2008.  On 15 December 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  On 17 March 2009, the Tribunal affirmed the decision of the delegate. 

5                     The appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision on 16 April 2009.  On 28 August 2009, Emmett FM dismissed the application. 

6                     The Notice of Appeal to this Court, filed on 18 September 2009, contains two grounds:

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.                  T[h]e 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.

7                     The only oral submission in support of those grounds made by the appellant to the Court today is a repetition of his claims that he would suffer harm should he be returned to India. 

8                     The Tribunal in its decision accepted that the appellant was a member of the Kerala Students Union (KSU), and that he was involved in a violent incident in August 2005 that was reported to the police, and in which he was injured. 

9                     However, the Tribunal concluded that the appellant was not a credible witness and that he fabricated a story around the incident for the purposes of his protection visa application.  The Tribunal rejected the appellant’s claims raised for the first time at the Tribunal hearing.  In particular, it rejected his claim that he was involved in an instance which led to a murder, and his claims that he was later assaulted and/or threatened in Madras, Mumbai, or Kerala on his return. 

10                  The Tribunal therefore did not accept that he departed India because of a fear arising from such assaults and threats.  The Tribunal was not satisfied that he had a well-founded fear of persecution for one or more of the Convention reasons.

11                  The grounds of appeal before the Federal Magistrates Court were: 

1.                  Jurisdictional error 

2.                  Breach of procedural fairness; 

3.                  Breach of natural justice 

12                  Emmett FM found that those grounds did not disclose a particularised error capable of review by the Federal Magistrates Court.  Her Honour noted that the Tribunal put to the appellant inconsistencies in his oral evidence to the Tribunal, his written claims and his interview with the delegate of the first respondent.

13                  Emmett FM was satisfied that the Tribunal’s findings were open to it on the evidence before it for the reasons which the Tribunal gave, which included its adverse credibility findings. 

14                  The two grounds of appeal to this Court are as I have set out above.  I accept the submissions on behalf of the first respondent, that as the appellant’s grounds of review before the Federal Magistrates Court were entirely unparticularised, and the appellant made no substantial oral or written submissions in support of those unparticularised grounds, the appellant’s allegation that Emmett FM failed to consider the grounds raised by the appellant is without substance.

15                  The second ground of appeal amounts to no more than an attempt to engage the Court in impermissible merits review.  It does not identify any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. 

16                  For these reasons the appeal must be dismissed. 

17                  The orders of the Court are:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent of and incidental to the appeal, to be taxed if not agreed.

Associate:

Dated:         11 December 2009