FEDERAL COURT OF AUSTRALIA

SZQFL v Minister for Immigration and Citizenship [2011] FCA 1280

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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 from a decision of Emmett FM dated 28 July 2011 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down 6 April 2011. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant’s application for a protection visa.

Background

2        The appellant is a citizen of India who arrived in Australia on 31 July 2010. On 9 September 2010 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 26 November 2010. On 22 December 2010 the appellant applied to the Tribunal for a review of that decision.

3        The appellant is a Muslim and claims to fear harm from Hindu extremists of the Rastriya Swayam Sevak Sang (“the RSS”) who allegedly pursued him from 1999 to 2001:

    because of his charitable activities in a Muslim welfare association; and

    from 2004, because he had a love affair with the daughter of a leading RSS figure who allegedly killed her because of this love affair. He also claimed to fear harm at the hands of his fellow Muslim villagers because of this affair.

Refugee Review Tribunal

4        The Tribunal questioned the credibility of the appellant’s account of his experiences in India and the claimed threats by Hindu extremists. The Tribunal found that there were certain implausible aspects of the appellant’s claim: for example, the Tribunal did not believe that the majority of the population in the appellant’s home town of Adirampattinam were Hindus, stating that country information showed that the majority were actually Muslim. The Tribunal was not satisfied that the appellant was ever targeted by the RSS or other Hindu extremist groups for involvement in charitable work among fellow Muslims in Adirampattinam.

5        The Tribunal was also not satisfied that the appellant had a love affair with a Hindu girl leading him to be further targeted by the RSS, including members of the girl’s family. For these reasons the Tribunal concluded that there was no real chance of harm if the appellant were to return to his home town in India.

Federal Magistrates Court

6        On 10 May 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application contained the following grounds:

1.    The applicant fear persecution. If I return to my country my life would be in danger.

2.    I must be outside of my country because I need to save my life from the RSS and UHP extremists and my Muslim community as well.

3.    The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s.91R(2)(a) of the Migration Act. If I asked to relocate in India, the Tribunal failed to satisfy this statutory obligation was a serious jurisdiction error caused by the Tribunal and the Applicant was not satisfied the Tribunal decision because as per the decision record misunderstanding on my hearing time. Which I underline in attached decision record and I don’t get enough time to provide my proof.

(Errors in original.)

7        The Federal Magistrate found that grounds one and two sought an impermissible merits review. In relation to ground three, her Honour found that the Tribunal’s findings in respect of the appellant’s credibility and the implausibility of the appellant’s claims were ultimately open to the Tribunal, and for the reasons the Tribunal gave including an adverse credibility finding in respect of the appellant. Having rejected the appellant’s claims, the Federal Magistrate stated that there was no reason for the Tribunal to further consider the issue of effective State protection.

8        In relation to an assertion of an inadequate Tribunal hearing, the Federal Magistrate stated that this complaint was not substantiated. The Tribunal had satisfied its obligations under s 425 of the Migration Act 1958 (Cth) (“the Act”) by inviting the appellant to a hearing, and had undertaken an extensive exploration of the appellant’s claims at the hearing.

9        Her Honour concluded:

59.    A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support, including post-hearing documents. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

60.    In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

61.    The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

Application to this Court

10        On 17 August 2011 the appellant filed a notice of appeal. That appeal contained the following ground:

The Hon. FM Emmett failed to take consideration that the second respondent failed to exercise failed to exercise its jurisdiction.

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in active intellectual process in respect of these documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the document corroborated his claim.

11        It appears that this is the first time the appellant has raised the issue of the alleged failure of the Tribunal to engage with the documents he provided. This ground of appeal was not raised before her Honour. To that extent the appellant requires the leave of this Court to rely on it on this appeal: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578.

12        The Court understands the difficulties faced by unrepresented litigants, particularly those whose first language is not English. Commonly, leeway is extended to such litigants to permit new grounds of appeal to be raised. In this case, as the Minister is in a position to meet this ground of appeal, I am prepared to grant leave for the appellant to rely on it.

13        In Court yesterday the appellant appeared unrepresented. He made oral submissions, which can be summarised as follows:

    the hearing before the Tribunal as well as advice from an advocate gave the appellant insight into documentation he would require for his case;

    a friend had travelled to India and was travelling again in several days time to obtain further documents for him;

    no-one in his village in India knew where he was other than his mother;

    he needs more time to substantiate his case for a protection visa.

14        In summary, Mr Temby for the Minister submitted that the appellant’s submissions were, in essence, irrelevant to his ground of appeal; that in any event the Tribunal had given the appellant an opportunity to obtain further documents to which it had had regard; and that the weight given by the Tribunal to material before it was a matter for the Tribunal.

15        At paragraph 56 of the Tribunal’s decision the Tribunal details documents submitted by the appellant to it after the hearing. At [72]-[73] of the decision the Tribunal clearly engages with the medical certificate and the photographs supplied by the appellant. The handwritten letter allegedly from the woman he claims was killed was the subject of consideration by the Tribunal to the extent that the Tribunal considered the credibility of the claim presented by the appellant.

16        The appellant seeks a further opportunity to present additional documentation in support of his case. While s 425 of the Act entitles the appellant to present his case to the Tribunal, the Tribunal is entitled to require presentation of additional documentation within a reasonable time. In this case it is clear that the Tribunal afforded the appellant an opportunity to obtain additional material, and that he took advantage of that opportunity. I am not persuaded that the Tribunal has erred in any way in reaching a decision on the basis of the material before it.

17        No appealable error is evident from the decision of her Honour.

18        The appeal is dismissed with costs.

Associate:

Dated:    10 November 2011