FEDERAL COURT OF AUSTRALIA

SZOBB v Minister for Immigration and Citizenship [2010] FCA 774

THE COURT ORDERS THAT:

1.                  The notice of appeal filed on 9 April 2010 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 19 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 Malaysia who arrived in Australia on 25 February 2009. On 9 April 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). 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 have been discriminated against in Malaysia by reason of being a Tamil-speaking Hindu.  In particular, the appellant claimed that he joined the Hindu Rights Action Force (“HINDRAF”) to fight for his rights, as the Malaysian Islamic government persecuted Tamil-speaking Hindu Malaysians.  He claimed that when he completed his studies he was unable to find a suitable job due to discrimination by employers and the Malaysian workforce.  He attempted to find work in the United Kingdom and New Zealand, but was unsuccessful in doing so.

4                     The appellant claimed that in November 2008 he and his friends and cousins were arrested and held in Pudu Lockup Prison where they were tortured and starved for nearly two weeks.  He claimed that HINDRAF made representations about their arrest, and they were subsequently released on the condition that they would be followed after their release and if they were found to have any connections with HINDRAF or the Malaysian Indian Congress (“MIC”) they “would be taken in permanently and would be declared dead”.  He claimed that the authorities were sending Islamic extremists to abduct and kill all Hindu Tamil speaking youths and many of his friends started to disappear.  He claimed that he went into hiding until he left Malaysia and during this time his parents were threatened by the authorities who wanted to know his whereabouts.

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

5                     While the Tribunal accepted that the appellant had some loose association with HINDRAF while in Malaysia, it found that the appellant was nothing more than one of hundreds of thousands of members and that he did not have any significant role or responsibility within HINDRAF other than attending meetings and signing petitions.  Accordingly, the Tribunal was not satisfied the appellant was a HINDRAF activist and found that he had manufactured this claim in order to obtain a protection visa.  In particular, the Tribunal noted that the appellant had provided no evidence of his involvement in HINDRAF, or in respect of the alleged mistreatment he suffered as a result, and that the appellant’s claims about his membership of HINDRAF relied on general public knowledge.

6                     Further, the Tribunal found that there was a number of inconsistencies and contradictions in the appellant’s claims.  In relation to the appellant’s claim to having been detained in Malaysia, the Tribunal noted that in his protection visa statement he claimed that he was detained in November 2008 for two weeks, but that at his interview with the Department and during the hearing before the Tribunal, the appellant claimed he was detained for longer periods on a number of occasions.  The Tribunal found that, because these claims were so central and significant to the appellant’s application, if they were true, he would have recounted them consistently.  Accordingly, the Tribunal did not accept that the appellant had ever been arrested and detained by police in Malaysia.  The Tribunal made a similar finding in relation to the appellant’s claim to having been beaten and tortured.

7                     The Tribunal found further inconsistencies and contradictions in the appellant’s claims that he had travelled to the United Kingdom and New Zealand, but had not sought protection there.  When the Tribunal asked the appellant why he did not seek asylum then and there, the appellant responded that he did not know that he could apply for asylum while he was in London, and that he had no one to help him.  As to New Zealand, he claimed he could not afford to stay for longer than two weeks.   The Tribunal found these reasons would not have prevented the appellant from applying for refugee status in these countries if he had a well-founded fear of serious harm amounting to persecution for a Convention reason.

8                     The Tribunal, therefore, found that the appellant was not a credible witness, and it was not satisfied that there is a real chance that he would be subject to serious harm amounting to persecution for a Convention reason if he returned to Malaysia now, or in the reasonably foreseeable future.  The Tribunal therefore affirmed the delegate’s decision.

the federal magistrate finds no jurisdictional error

9                     The appellant’s application for judicial review in the Federal Magistrates Court contained the following grounds:

1.                   The Tribunal failed to give consideration to the fact that the Applicant was actively participating in the demonstration in support of the Tamil league and unreasonably rejected his claims on the basis that the Applicant was not aware of the political leaders and the date of events and thus made a procedural error leading to jurisdictional error.

2.                   The Tribunal relied on the Department’s country information available to it and unreasonably expected the applicant to hold similar information forgetting the fact that the Applicant is a layman and with bias continued to conduct the hearing, rejecting Applicant’s claims and making a jurisdictional error.

3.                   The Tribunal failed to give the Applicant the opportunity to clear the doubts that the Tribunal had in relation to his claims, instead the Tribunal made a procedural error by questioning the applicant as to unnecessary details, confusing the Applicant during the hearing and thus made a jurisdictional error on procedural fairness.

10                  In relation to ground 1, the Federal Magistrate found that this contention failed because the Tribunal clearly did give consideration to the evidence that the appellant placed before it.  Otherwise, his Honour found this ground merely sought to challenge the Tribunal’s findings of fact, which were not open to be reviewed in judicial review proceedings.

11                  In relation to ground 2, the Federal Magistrate found that there was no evidence that the Tribunal required the appellant to have independent country information similar to that which was available to it, or that the appellant had sought an adjournment of the hearing.  His Honour stated that there was thus no basis to find that the Tribunal’s conduct of the review manifested bias, whether of an actual, or ostensible, nature.

12                  In relation to ground 3, the Federal Magistrate concluded that this allegation could only be read as a complaint that the Tribunal failed to comply with either ss 424A or 425 of the Migration Act 1958 (Cth) (“the Act”).  On that assumption, his Honour found that the Tribunal met its obligations under these provisions and that the Tribunal’s decision record clearly demonstrated that it put its concerns to the appellant on a number of occasions and gave him a proper opportunity to respond.

13                  The Federal Magistrate also addressed a number of contentions raised by the appellant in his written and oral submissions.  In summary, his Honour found that:

·                    The allegation that the Tribunal failed to understand his fear was no more than a disagreement with the Tribunal’s assessment of the evidence;

·                    There was no evidence which cast any doubt upon the Tribunal’s statement as to the competence and effectiveness of the translation services available at the hearing;

·                    The Tribunal’s lack of satisfaction that the appellant was a HINDRAF activist of any sort in Malaysia, was not a conclusion indicative of jurisdictional error;

·                    The Tribunal did in fact give the appellant “the benefit of the doubt” in accepting his unsupported claims that he had some loose association with HINDRAF while in Malaysia;

·                    The Tribunal did not have any obligation to put its doubts concerning his evidence to him pursuant to s 424A of the Act, or otherwise;

·                    The fact that the appellant failed to produce convincing corroborative evidence was something which the Tribunal was entitled to take into account when deciding whether his claims were to be believed;

·                    The Tribunal’s findings regarding his failure to apply for a protection visa in the United Kingdom or New Zealand were open to it to make; and

·                    The Tribunal’s decision-record did not disclose that it approached the review in anything other than good faith.

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

The CONDUCT OF PRESENT APPEAL

15                  On 9 April 2010, the appellant filed a notice of appeal in this Court which alleged that:

1.         The Tribunal exceeding its jurisdiction and constructively failed to exercise its jurisdiction by failing to accept the fact that the Appellant does not have to have full knowledge or commitment to HINDRAF to become a member of HINDRAF.

2.         The Tribunal and Federal Magistrates Court failed to accept the fear of torture and death the Appellant had in relation to the involvement in HINDRAF and failed to grant  the opportunity for the Appellant to explain the consequences if he continued to stay in Malaysia.

3.         The Federal Magistrates Court and the Tribunal constructively ignored relevant material in the claims as to the Appellant’s involvement in HINDRAF personally and relied on irrelevant material to reject the Appellant’s claims. Federal Magistrate failed to give the judgment in writing.

4.         The Federal Magistrates Court and the Tribunal identified wrong issues and the Tribunal knowingly asked wrong questions for the Appellant to get confused as to relevant dates and time frames stated in the claims.

[Errors in original]

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

17                  In his oral submissions, the appellant’s main concern was that he could not provide further evidence to substantiate his claims.  The appellant also filed written submission raising essentially the same concerns.  The appellant submitted that the Federal Magistrates Court and the Tribunal did not accord him procedural fairness by:  requiring proof of membership to HINDRAF in circumstances where he had to flee Malaysia in fear of torture and death; and requiring him to produce documents in relation to the charges laid by the authorities in Malaysia when the same authorities were unlikely to produce such documents as they had broken the law in laying the charges.

18                  Mr Smith relied upon the outline of written submission that had been filed on behalf of the Minister.

consideration

19                  On the assumption the reference to the “Tamil League” is intended to refer to the HINDRAF, the appellant’s first ground of appeal appears to be similar to the first ground of review raised before the Federal Magistrate.  This ground seeks to challenge the factual conclusions reached by the Tribunal as to the appellant’s involvement with the HINDRAF organisation.  This involvement was alleged to have caused his persecution.  Even if there was some error in the Tribunal’s conclusions about these matters, there is clear authority that such errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510 at 560; [1999] HCA 14 at [137].

20                  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].  It follows that the appellant’s first ground of appeal must be rejected.

21                 The first part of the appellant’s second ground of appeal also seeks to challenge the Tribunal’s factual findings and, therefore, seeks a review of the merits of the Tribunal’s decision.  For the reasons outlined above (see [19] to [20]), these matters are not open to review, or to appeal in this Court.  The second part of the appellant’s second ground of appeal appears to allege that he was not provided with the opportunity to present a critical part of his case, ie the dire consequences if he were to remain in Malaysia.  As the High Court observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35]:  “ … the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision”.  The Tribunal’s reasons show that the Tribunal did in fact give the appellant at least two opportunities to say what he wished to about this part of his case.  First, the Tribunal records that it: “… put to [the appellant] that he would not have been willing to return to Malaysia if his claims were true”.  Secondly, at the end of the hearing, the Tribunal asked the appellant if there were any other claims or matters he wished to put before the Tribunal.  According to the Tribunal’s reasons, he responded at length about this aspect of his case on both these occasions.  It follows that the appellant’s second ground of appeal must also be rejected.

22                 The first part of the appellant’s third ground of appeal again seeks to challenge the Tribunal’s factual findings and, therefore, seeks a review of the merits of the Tribunal’s decision.  For the reasons outlined above (see [19] to [20]), these matters are not open to review, or to appeal in this Court.  In relation to the second part of the appellant’s third ground of appeal, it is clear that the Tribunal wrote to the appellant on 28 October 2009, advising him that his application for review had been unsuccessful.  Attached to that letter was a copy of the Tribunal’s written reasons.  It follows that the appellant’s third ground of appeal must be rejected too.

23                 Finally, it is not possible from the general and unparticularised nature of the appellant’s fourth ground of appeal to begin to assess whether the Tribunal did in fact make any relevant error as alleged therein.  No details are provided as to what “wrong issues” and “wrong questions” the Federal Magistrate and the Tribunal are said to have asked.  If this ground is intended to allege bad faith or bias against both, first, I agree with the Federal Magistrate’s reasons for rejecting the similar allegations in relation to the Tribunal’s decision and, secondly, there is, in my view, not even the slightest evidence in the Federal Magistrate’s reasons, or any other evidence, to support these allegations against the Federal Magistrate.

24                 It follows that the appellant’s fourth ground of appeal must be rejected.

25                 The appellant’s written submissions raise the contention that the Tribunal denied the appellant procedural fairness by requiring the appellant to provide proof of various matters:  see above at [17].  As discussed by the Federal Magistrate ([2010] FMCA 236 at [34] to [36]), the Tribunal did not require proof of these matters as a condition precedent to finding that the appellant had a well-founded fear of persecution.  Rather, the Tribunal noted that if the appellant suffered the horrendous treatment as he claimed, then he would have provided some evidence to support these claims.  The Tribunal was quite entitled to take into account the appellant’s failure to produce convincing corroborative evidence and the absence of such evidence was merely one factor relied upon by the Tribunal.  I therefore reject this contention.

Conclusion

26                  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