FEDERAL COURT OF AUSTRALIA

SZOZD v Minister for Immigration and Citizenship [2011] FCA 946

THE COURT ORDERS THAT:

1.    The notice of appeal filed on 3 June 2011 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of a Federal Magistrate delivered on 18 May 2011 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 12 June 2010. On 21 July 2010 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 refused the application on 19 October 2010. On 9 November 2010 the appellant applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate’s decision.

CLAIMS OF RELIGIOUS AND OTHER PERSECUTION

3    The appellant claimed to fear persecution in India by reason of his religious beliefs. The appellant claimed that he is of the Muslim faith and is from Ahmedabad in Gujarat State in India where Muslims are a religious minority. The appellant claimed that as a leader of the Muslim community in Ahmedabad he had been the subject of persecution by various Hindu extremists, including the BJP, RSS and Hindu Shave Sana groups. The appellant claimed he has had several close Muslim friends die, due to this religious persecution.

4    The appellant is a trained lawyer in Gujarat State and he also claimed that he has been targeted for providing legal services pro bono to Muslim clients. During his time practising as a lawyer, the appellant claimed that he suffered discrimination, harassment and physical abuse, sometimes from fellow lawyers.

5    At some point that is not discernable from the facts before me, the appellant appears to have moved to Thailand and carried on a business in Bangkok. During this time the appellant claimed that he travelled extensively, but he would never fly to or from Gujarat airport for fear of being killed. The appellant claimed his Bangkok-based business was very successful but his store and stock were destroyed in the ‘Red Shirt’ riots in early to mid 2010.

6    In support of his visa application, the appellant provided a lengthy written statement, his Indian passport, his education records, his Bar Council of Gujarat membership card, his Thai driver’s license, his Thai business card and an undated clipping from the Sandesh Newspaper stating that he was beaten and threatened on 19 March 2010.

THE TRIBUNAL AFFIRMED THE DELEGATE’S DECISION

7    As noted above, the appellant applied to have the Tribunal review the delegate’s refusal to grant him a protection visa. According to the Tribunal’s decision record, on 30 November 2010 it wrote to the appellant inviting him to attend a hearing. The appellant did not attend that hearing, nor contact the Tribunal to respond to its invitation.

8    Accordingly, the Tribunal decided to proceed in the appellant’s absence under s 426A of the Migration Act 1958 (Cth) (“the Act”).

9    However, as a consequence of the appellant’s non-appearance, the Tribunal was unable to explore the appellant’s claims in more detail. In its decision record, the Tribunal set out approximately 10 matters it wished to explore with the appellant, including: how many times he had returned to India since leaving and why he had returned; why he did not seek protection in the countries he had visited after leaving India; whether he could relocate within India and away from Gujarat State; and whether he had a current right of residence in Thailand.

10    The Tribunal also had concerns about the newspaper clipping that the appellant provided to the Department, including whether the clipping had been fraudulently pasted onto the rest of the newspaper and whether the article was available in a form obtainable for verification purposes.

11    In short, the Tribunal did not consider it had enough detail to substantiate the claims the appellant made in his written statement. Thus the Tribunal was not satisfied that the appellant had a well-founded fear of persecution so as to fall within Australia’s obligations under the Convention.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

12    The appellant did appear before the Federal Magistrate on his application for judicial review of the Tribunal’s decision. During that appearance, he told his Honour that he did not appear before the Tribunal because “he had heard through friends that the Tribunal made unfavourable decisions”. He also said he had been told he was likely to be arrested.

13    The Federal Magistrate noted that all of the matters raised by the appellant before him were “of a factual nature” and that none of them made out any basis for jurisdictional error on the part of the Tribunal.

14    Accordingly, the Federal Magistrate dismissed the appellant’s application for judicial review.

THE CONDUCT OF THE PRESENT APPEAL

15    On 3 June 2011, the appellant filed a notice of appeal in this Court. That application alleges (without alteration):

1.    That the applicant has by way of his evidence placed the bundle of evidence before the respondents but the respondents has not gone into the virtual and legal facts of the matter of the applicant. The learned magistrate on one hand ignores the content of the written statements and thereby he lays down that to go into the merit review is not within the jurisdiction of this court. According to the Para 5 of the judgment of the Federal magistrate court, has observed that the statement of the claim is untruthful and fraudulent. It is very strange that the learned Federal Magistrate has in a way declared the applicant as untruthful, however this particular Para5 was picked up by the learned Magistrate. This is a clear violation of the law, such remarks made by the RRT should not have taken into the account for giving a judgment in this particular matter.

2.    That it is beyond the imagination keeping in view the country information report and the human right commissions for the Muslims living in the state of Gujarat are suffering from day to day killings in the shape of mass murders of the Muslims and the US government has banned the chief minister of Gujarat for visiting the United state due to the atrocities committed on the Muslims in Gujarat. The BJP Government, in the state of Gujarat is known as one of the most discriminatory government and they support the killings of Muslims and openly support extreme Hindu rioters to kill and violate Muslims by burning their houses. There are numerous examples in the country of information, that Muslims are being burned alive. In the case of the applicant, by being a lawyer in his state was persecuted many times, since he was upholding the minority Muslims view and their welfare. The applicant himself is a lawyer and nobody can be at more risk as compared to anybody else because the applicant was a lawyer and was defending Muslims and the applicant in his statement of claim has clearly mentioned the atrocities and harassment committed on the applicant by extreme Hindus. Unfortunately RRT blamed the applicant claim and as a matter of fact called him a fraudulent person, who is against the law and RRT has gone beyond its jurisdiction. The learned magistrate also violated principles of natural justice. Therefore there is a jurisdictional and legal error, which requires the attention of this honorable court.

3.    That the respondents did not applied the proper law and procedure, this has resulted in the error of the law. The applicant/appellant has fulfilled all four key elements of being a refugee, as the applicant/appellant has submitted his statement of claim.

16    At the hearing before me on 16 August 2011, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr White appeared as counsel for the first respondent. The appellant did not wish to make any submissions in support of his appeal.

CONSIDERATION

17    The grounds of appeal to this Court, while restated and restructured somewhat, raise essentially the same issues as were raised before the Federal Magistrate. I will deal briefly with each of the three grounds in turn.

18    In ground 1, the appellant claims the respondents (he must mean the Tribunal): “has not gone into the virtual and legal facts of the matter of the applicant”. He then claims that, on one hand the Federal Magistrate “ignores the content of the written statements” submitted by him and yet, on the other hand, observes that those statements are “untruthful and fraudulent”. He concludes by saying this is “a clear violation of the law”.

19    In my view, the appellant has completely misunderstood and misrepresented the import of the Federal Magistrate’s decision. The Federal Magistrate did not consider it was necessary to set out the appellant’s lengthy claims because “they do not go to whether or not the Tribunal made an error of law in the manner in which it reached its decision, but rather dispute the decision itself”: see [2011] FMCA 382 at [6]. There can be no doubt about the correctness of this statement. It is well-established that neither the Federal Magistrates Court, nor this Court, can review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

20    As to the expression “untruthful and fraudulent”, the only use the Federal Magistrate made of that expression was to record that the Tribunal had identified this as a possibility arising from some of the claims made by the appellant, which the Tribunal was unable to explore with the appellant because he elected not to attend the hearing before it. What the Federal Magistrate actually said was: “The Tribunal also noted other matters which it could not explore with the applicant, including the possibility that some evidence he had produced consisted of a fraudulent or untruthful claim.” It is patently clear from this that the Federal Magistrate did not conclude that the appellant’s claims were untruthful and fraudulent.

21    For these reasons, there is no merit to ground 1 of the appellant’s notice of appeal.

22    Ground 2 of the notice of appeal falls, at least partially, into the same category as ground 1. The appellant makes a number of assertions about the persecution of Muslims in Gujarat. He also asserts that, as a lawyer, he faces particular persecution in Gujarat State. These assertions seek to dispute the factual findings of the Tribunal rather than identify any jurisdictional error on the part of the Tribunal. Accordingly the Federal Magistrate did not err in refusing to review the Tribunal’s factual findings based on any of these assertions.

23    Ground 2 also alleges that the Tribunal exceeded its jurisdiction by referring to the appellant as a “fraudulent person” and that the Federal Magistrate breached the principles of natural justice. As I have observed above, these allegations involve a complete misrepresentation of the way in which this expression was used by the Tribunal and the Federal Magistrate.

24    For these reasons, there is also no merit to ground 2.

25    Ground 3 of the notice of appeal asserts that the Tribunal failed to apply “the proper law and procedure” and that the appellant satisfies the “four key elements of being a refugee”. The appellant has not particularised what law and procedure the Tribunal allegedly failed to follow and without such particulars this assertion is meaningless. As to the claim that the appellant met the four key elements of being a refugee, this represents yet another attempt by the appellant to argue the merits of the Tribunal’s decision and, for the reasons stated above, cannot be entertained in an appeal before this Court. There is also no merit to ground 3.

26    Finally, the appellant has filed an affidavit in support of this appeal. That affidavit simply repeats the grounds of appeal contained in the appellant’s amended application to the Federal Magistrate’s Court. For this reason, it does not advance the matter and I do not need to consider it any further.

27    Before leaving this appeal, I would add this. The irony that emerges from the whole of the appellant’s three grounds of appeal is that he is dissatisfied with the way in which the Tribunal dealt with his factual claims, yet he passed up his only opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.

28    For these reasons, I am unable to detect any error on the part of the Federal Magistrate. Accordingly, the appellant’s appeal must be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:    19 August 2011