FEDERAL COURT OF AUSTRALIA

SZNDJ v Minister for Immigration and Citizenship [2010] FCA 778

THE COURT ORDERS THAT:

1.                  The notice of appeal filed on 8 March 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 22 February 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

background and procedural history

2                     The appellants are citizens of India who arrived in Australia on 8 May 2008.  On 28 May 2008 the appellants 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 appellants then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.

3                     On 15 May 2009 the Federal Magistrates Court set aside the Tribunal’s decision by consent and remitted the matter to the Tribunal to be determined according to law.  The Tribunal, differently constituted, also affirmed the delegate’s decision.  The appellants then made a further application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.  It is the decision on this second application for judicial review that has led to this appeal.

4                     The first appellant included his partner, the second appellant, in his application form.  The second appellant made no claims in her own right, having only completed an application form D.  I will refer to first appellant as “the appellant” throughout these reasons.

claims of political and other PERSECUTION

5                     The appellant claimed to fear persecution in India by reason of his political opinion, race and membership of a particular social group.  Essentially, he claimed to be a lower caste Hindu and a member and/or supporter of the Congress Party.  He claimed that he was harassed, threatened and harmed by Bhartiya Janata Party (“BJP”) activists.  In particular, the appellant claimed that BJP activists targeted his shop and harassed his customers, with the intention of driving him out of business.

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

6                     The Tribunal found that the appellant was not a truthful or reliable witness and that it had serious doubts about the veracity of his claims and his credibility as a witness.  In reaching this view, the Tribunal had regard to, what it described as, the “uncanny similarities” between his claims and those submitted by another applicant for review before the Tribunal.  The Tribunal was of the view that these similarities were far too great to be dismissed as mere coincidence.  It, therefore, concluded that his evidence was a total fabrication and had been  manufactured for the purpose of securing a protection visa.

7                     The Tribunal also took into account the significant inconsistencies it found existed between the evidence the appellant had presented to the Department and the evidence he gave to the Tribunal, in relation to:  his address; movements; work history; and financial situation.  The Tribunal put these concerns to the appellant in a letter dated 30 July 2009, but it was not satisfied with the explanations he gave in reply.  Finally, the Tribunal noted that the appellant belatedly introduced new and significant claims at the second Tribunal hearing.  The Tribunal considered this showed he had a propensity to shift, tailor and manufacture his evidence.

8                     Accordingly, the Tribunal was not satisfied that the appellant (or his wife) was a person to whom Australia owed protection obligations under the Convention, and it affirmed the delegate’s decision.

the federal magistrate finds no jurisdictional error

9                     The appellant filed an application for judicial review in the Federal Magistrates Court, which raised the following grounds:

1.         The Tribunal member had failed to honour his undertaking. The requirement to put information to an appellant is contained in S424A which relevantly states:

…

It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.

2.         The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

3.         The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India for being lower caste. Therefore, the Tribunal decision dated 30 September 2009, was effected by actual bias constituting judicial error.

10                  In respect of ground 1, the Federal Magistratenoted that the Tribunal did write to the appellant under s 424A of the Migration Act 1958 (Cth) (“the Act”) and put to him in that letter, not only the similarity between his claims and the claims of another applicant, but also the relevance of that information and the Tribunal’s concerns about it.  Furthermore, her Honour noted that the Tribunal also put to the appellant a number of inconsistencies in his evidence to the Department and to the Tribunal and in each case explained the specific relevance of the information and the Tribunal’s concerns about it.  Finally, her Honour found that there was no further information before the Tribunal which came within s 424A(1) of the Act.

11                  The Federal Magistratetherefore concluded that, insofar as the Tribunal may have given an “undertaking” to the appellant, it had honoured that undertaking by sending the s 424A letter to him and by putting the various inconsistencies (identified above) to him for comment.  She added that this was done notwithstanding these matters did not constitute information within s 424A of the Act, relying upon SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26.

12                  In respect of ground 2, the Federal Magistrate noted that she was not permitted to conduct a merits review of the Tribunal’s decision.  Her Honour also noted that the Tribunal had properly considered whether there was a real chance that the appellant would be harmed for a Convention reason in India and it had concluded that he did not have a well-founded fear of persecution there.  Further, since the Tribunal had not accepted the credibility of any of the appellant’s claims about past harm and it was those claims that led, in turn, to his claims to have a well-founded fear of persecution, it was not necessary for the Tribunal to proceed to analyse more carefully than it did, the possibility of the appellant suffering future harm.

13                  In respect of ground 3, her Honour noted that the Tribunal explained to the appellant that it was under no obligation to make out his case for him and that it was the appellant’s responsibility to provide evidence to support his claims.  Her Honour observed that a failure by the Tribunal to inquire about a matter would only amount to jurisdictional error in the exceptional circumstances where the enquiry was obvious and was about a critical fact, the existence of which was easily ascertainable.  Her Honour found that this was not such a case, relying upon Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

14                  Accordingly, the Federal Magistrate dismissed the appellant’s judicial review application for want of jurisdictional error.

The CONDUCT OF PRESENT APPEAL

15                  On 8 March 2010, the appellant filed a notice of appeal in this Court which alleged that:

1.         His honors judgment delivered on the 22 February 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

2.         The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

3.         The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

            [Errors in original]

16                  At the hearing of the appeal before me on 26 May 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Pinder appeared for the Minister.

17                  The appellant made no oral submissions and Mr Pinder relied upon the outline of written submissions that had been filed on behalf of the Minister.

consideration

18                  None of the grounds raised in the appellant’s notice of appeal was raised before the Federal Magistrate.  The authorities clearly establish that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so:  see O’Brien v Komesaroff (1982) 150 CLR 310 at 319; and Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [38].  Nonetheless, since the appellant is unrepresented, I consider it is in the interests of justice that I should examine the grounds raised in his notice of appeal.

19                  At the outset of that examination, it is appropriate to observe that the appellant’s grounds of appeal are quite formulaic in their terms and they are similar, if not identical to, the grounds of appeal that have been used before in other migration appeals, including a number of appeals before me in this sittings:  see SZKNA v Minister for Immigration and Citizenship [2007] FCA 1806 at [10]; SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775.  Nonetheless, I have attempted to identify whether any of the grounds raises any apparent error on the part of the Federal Magistrate.

20                  Turning to the first ground, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors.  The appellant’s first ground of appeal must therefore be rejected.

21                  The appellant’s second ground of appeal asserts that the Federal Magistrate dismissed his application without considering the legal and factual errors contained in the decision of the Tribunal.  This ground of appeal is also general and unparticularised.  The appellant has not pointed to any error in the Federal Magistrate’s reasons, nor any specific legal error in the Tribunal’s decision.  Furthermore, I consider it is clear from the reasons for decision of the Federal Magistrate that each of the grounds of review raised by the appellant was dealt with in a clear and comprehensive manner.  As to the assertion there were factual errors in the Tribunal’s decisions, there is clear authority that such errors cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 560 at [137].  The appellant’s second ground of appeal must therefore be rejected.

22                  As to the appellant’s third ground of appeal it, too, is unparticularised and in the most general of terms.  Moreover, whether the Tribunal’s decision was “unjust” and “made without taking into account … of [his] circumstances …” is redolent of a merits review which, of course, is not open to be reviewed on an appeal to this Court.  Furthermore, these are matters that fall squarely within the exclusive fact-finding role of the Tribunal:  see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].  The appellant’s third ground of appeal must also be rejected.

23                  Finally, in case there may be some error in the Federal Magistrate’s decision that falls within these general and unparticularised grounds of appeal, I have examined the Federal Magistrate’s reasons (summarised at [10] to [13] above) and I cannot detect any such error in them.

conclusion

24                  For these reasons, I reject all of the appellant’s grounds of appeal.  It follows that this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         23 July 2010