FEDERAL COURT OF AUSTRALIA

SZNWK v Minister for Immigration and Citizenship [2010] FCA 773

THE COURT ORDERS THAT:

1.                  The notice of appeal filed on 26 March 2010 be dismissed.

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REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 9 March 2010, 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 31 December 2008.  On 5 January 2009 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 and political PERSECUTION

3                     The appellant claimed that he was born in the village of Vadakarai where he used to be a member of the local Jamath (a mosque).  The appellant claimed that in 1998 he left India and travelled to Thailand, where he worked and lived for ten years before coming to Australia, and that he returned to India several times during this period.

4                     The appellant claimed he returned to India in April 2007 to assist his wife, who was in the final stages of pregnancy.  The appellant claimed that, at the time, Mr Munsoor was the local leader of the Tamil Nadu Muslim Munetra Kallagam (“TMMK”) which was supported by the Dravida Munnetra Kazhagam (“DMK”), the ruling political party.  The appellant, on the other hand, claimed to be a member of the Anna Dravida Munnetra Kazhagam (“ADMK”), an opposing political party, having been a member since 1998.  Whilst in India to help his wife, the appellant claimed that the wife of Mr Munsoor’s brother, Mr Farouk, gave birth to a stillborn child.  The appellant claimed that the Vadakarai Jamath, of which the appellant was a member, refused Mr Farouk permission to bury his child in the mosque burial ground as he had been ex-communicated and banished from the village for “unacceptable activities”.

5                     The appellant claimed that Mr Farouk’s brother, Mr Munsoor, asked him to speak to the other Jamath members on Mr Farouk’s behalf to seek permission to bury the stillborn child in the mosque.  The appellant claimed that when he refused Mr Munsoor’s request, Mr Munsoor became angry and said that he would take revenge. The appellant claimed that Mr Munsoor and his followers later approached his business partner and, as a result, their partnership was terminated.  The appellant claimed that he was frightened and afraid for his life because of attacks from Mr Munsoor’s followers, and that he left India and travelled to Bangkok because of this incident.

6                     The appellant also alleged that he was threatened by Hindu members of the Rashtriya Swayamsevak Sangh (“RSS”) and Bharatiya Janata Party (“BJP”), who came from a neighbouring village to threaten Muslims.  The appellant claimed that he fears that he will be killed by the TMMK and the DMK or the RSS and BJP if he returns to India.

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

7                     The Tribunal accepted that members at a neighbouring Jamath (not the appellant’s local Jamath) refused to allow the burial of Mr Farouk’s stillborn child and that as a result there was a clash with TMMK officials.  However, the Tribunal did not find that there was a second clash between the appellant’s Jamath and TMMK officials as a result of the burial issue.  Furthermore, the Tribunal held that, even if the appellant’s Jamath did refuse to allow the burial of Mr Farouk’s stillborn child, the Tribunal did not find credible the appellant’s claim that he played a key role in this decision.  

8                     Consequently, the Tribunal did not accept that the appellant was threatened or assaulted by Mr Farouk or Mr Munsoor or by TMMK or DMK supporters. Therefore, the Tribunal also did not accept that he was targeted because of his political affiliations, or that he would have been denied protection by the police had he made a complaint about being assaulted, or that his partnership was terminated as a result.

9                     The Tribunal did not accept that in December 2008 the appellant engaged in a raid on a neighbouring village or that he was targeted by the RSS and the BJP as a result, or that even if he had engaged in such a raid, it was credible that he would have been personally identified.  Consequently, the Tribunal did not accept that the appellant had a political profile which would result in him being of adverse interest to the DMK, the TMMK, the Congress Party, the BJP or the RSS.

10                  On the basis of the above, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention, and affirmed the decision under review.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

11                  The appellant filed an application for judicial review in the Federal Magistrates Court on 31 August 2009, which contained the following grounds:

1.         The Second Respondent erred in law as it failed to take into consideration relevant issues in this case.

Particulars: Applicant feared harm from a group apposed to a burial of a baby and that group is

2.         The Applicant was not accorded natural justice.

Particulars:  All the relevant adverse material which constituted part or whole of the case was not put to the applicant for his comment.

[errors in original]

12                  In respect to ground 1, the Federal Magistrate found that the Tribunal gave detailed consideration to the appellant’s claims, and concluded that, even if it were true that the Tribunal did not expressly deal with a particular issue raised by the appellant, it was nevertheless disposed of by reason of that issue being subsumed in the Tribunal’s more general findings, relying on Applicant Waee v Minister for Immigration and Multicultural And Indigenous Affairs (2003) 75 ALD 630; [2003] FCA 184 at [47].

13                  In respect to ground 2, the Federal Magistrate noted that the appellant had not identified what material was not put to him.  In any event, he found that the Tribunal had no obligations under s 424A of the Migration Act 1958 (Cth) (“the Act”), as all the information upon which it based its decision was:  information which the appellant had provided to the Minister’s department in writing; or information which the appellant provided to the Tribunal for the purposes of its review; or was independent country information.

14                  His Honour found that, in any event, in purported conformity with s 424AA of the Act (which permits the Tribunal to give oral notification of the matters that s 424A requires be advised to an appellant), the Tribunal did put a number of matters to him.  His Honour also found that, to the extent that the Tribunal had any obligations pursuant to s 425(1) of the Act (to put to the appellant issues arising in connection with the review), it did so at the hearing.  His Honour noted that the Tribunal explained to the appellant that there was information before it which might cause it to decide his claims were not credible and that a second hearing was listed to allow the appellant to address the Tribunal’s concerns with the appellant’s claims.

15                  The Federal Magistrate also considered the complaints raised by the appellant in his written submissions, namely that the Tribunal made factual errors in its findings, and erred in law by not providing reasons for its disbelief of his claims.  In this respect, his Honour found that there did not appear to be an error of fact in the Tribunal’s decision-record and, even if the Tribunal’s decision-record had been inaccurate, this would not amount to jurisdictional error justifying its decision being set aside, relying on Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”) per Gummow and Hayne JJ at 560 [137] and 579 to 580 [195].  Nor would the mere failure of the Tribunal to comply with its obligations under s 430 of the Act, without more, amount to jurisdictional error, relying on  Applicant S1507/2003 v Minister for Immigration & Multicultural Affairs [2007] FCA 290 and SZNOM v Minister for Immigration & Citizenship [2009] FCA 1244.

16                  The Federal Magistrate accordingly dismissed the appellant’s application for judicial review.

The CONDUCT OF PRESENT APPEAL

17                  On 26 March 2010, the appellant filed a notice of appeal in this Court which alleged that:

GROUND

Federal Magistrate erred in law by failing to find that the Second Respondent made a jurisdictional error.

            Particulars

a) Federal Magistrate Cameron failed to consider a relevant material fact in the application for protection visa.

b) Second Respondent failed to accord natural justice.

18                  At the hearing of the appeal before me on 24 May 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Pinder appeared for the Minister.

19                  In his oral submissions, the appellant’s main concern was that there were people in India waiting to attack him if he were to return.  Mr Pinder relied upon his written submissions.

consideration

20                  The one and only ground raised in the appellant’s notice of appeal alleges error on the part of the Federal Magistrate in failing to find that the Tribunal made a jurisdictional error.  Two items of “particulars” are provided, but neither actually provides any further details of this alleged error.  The first alleges that Federal Magistrate Cameron “failed to consider a relevant material fact”.  No relevant material fact is identified.  It is true that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction:  Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95].  However, without the “clearly articulated argument” being identified, it is impossible to begin to assess whether the alleged error was committed.  In any event, it is not the role of the Federal Magistrates Court to consider the facts of an application – fact-finding falls squarely within the jurisdiction of the Tribunal:  see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].  And even if the reference to Cameron FM was intended to be a reference to the Tribunal, there is clear authority that errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error:  see Abebe at 560 [137].

21                  The second “particular” suffers from the same defects as the first.  No detail is provided as to how it is said that the Tribunal failed to accord natural justice to the appellant.  It is impossible without that detail to assess whether or not the Tribunal committed such an error.  In case this allegation is intended to replicate the particulars in the second ground of review before Cameron FM (see [13] above), I agree with the Federal Magistrate’s conclusions that the Tribunal afforded the appellant natural justice in accordance with the provisions of the Act:  see [2009] FMCA 83 at [22] to [28]. 

Conclusion

22                  For these reasons, this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         23 July 2010