FEDERAL COURT OF AUSTRALIA

SZROZ v Minister for Immigration & Citizenship [2012] FCA 843

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed if not agreed.

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 judgment of the Federal Magistrates Court delivered on 14 March 2012, dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 1 August 2011, affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection visa.

Background

2    The appellant is a citizen of India. He arrived in Australia in November 2010 on a Subclass 456 (Short Stay Business) visa, and applied for the protection visa on 24 December 2010. A delegate of the first respondent interviewed the appellant on 31 January 2011, and refused the visa on 24 March 2011. On 28 April 2011, the appellant applied to the Tribunal for a review of that decision.

3    The appellant claimed that he had resided in the United Arab Emirates between November 1989 and April 1996 and had lived in Kerala between January 2010 and November 2010.

4    The appellant claimed to fear persecution in India for reason of his political opinion. He claimed to be a former member of the Communist Party of India (CPI(M)), and to fear harm from them because he had secret information about their affairs. He claimed to have left the CPI(M) because he was a Catholic and that the CPI(M)’s attitudes towards Christians was “not good”. He also claimed to fear harm because he had witnessed a murder by Dalit Human Rights Movement (DHRM) activists in 2009. He claimed the DHRM had tortured him, and that he changed his name as a result.

The Tribunal’s decision

5    The Tribunal found that the appellant was not a credible witness, did not accept that the appellant had any involvement in the incidents, or accept the entirety of the appellant’s claims to fear harm in India. The Tribunal found that the appellant had “placed himself” within two incidents in an attempt to provide a basis for claiming refugee status in Australia.

6    The Tribunal also noted inconsistencies and implausibilities in the appellant’s evidence as to why he changed his name in 2009, and concluded the appellant was manufacturing evidence in response to the Tribunal’s concerns.

7    The Tribunal noted other inconsistencies in his claims to be wanted by the DHRM, and found his claim to be instructed in some way by the CPI(M) in response to an incident in 2010, in which an academic had his hand cut off by Muslim fundamentalists, was vague and unpersuasive, which led the Tribunal to conclude that this claim was manufactured.

8    The Tribunal did not accept, due to the appellant’s problematic evidence, that the appellant had any involvement with the CPI(M), and as a result that the appellant was sought by the CPI(M) because he had resigned. The Tribunal accepted that the appellant was a Catholic, but noted that he had made no claims to fear harm for this reason.

Proceedings in the Federal Magistrates Court

9    In his amended application dated 20 October 2011, the appellant advanced the following grounds:

1.    The Tribunal failed to carry out its statutory duty.

(a)    The Tribunal has a statutory duty to issue a meaningful invitation to a meaningful hearing.

(b)    The Tribunal dismissed the diagnosis of the Applicant as suffering from Post Traumatic Stress Disorder without any professional opinion to the contrary.

2.    The Tribunal failed to give any, or any real, consideration to relevant material.

(a)    The Tribunal had before it a report from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) which can readily be accepted as an expert report.

(b)    This report diagnosed the applicant from suffering from post traumatic stress disorder.

(c)    The Tribunal dismissed this report without having any qualified evidence to the contrary.

10    The amended application was prepared by a member of the free legal advice scheme. The appellant was also represented at the hearing.

11    In his written reasons, the Federal Magistrate observed the following:

[29]     Moreover, its subsequent discussion of that possibility at paragraph 74, in my opinion, shows no error of fact, no error of law, and certainly no jurisdictional error under the principles discussed in SZNVW. I therefore do not accept the contention that a jurisdictional error is established by reference to s.425 of the Migration Act.

[30]     Nor, in view of the Tribunal’s expressed identification of the STARTTS letter, and of its discussion of its possible relevance to an assessment of the applicant’s credibility as a witness, can it be said that the Tribunal failed to consider the possible significance of the STARTTS report.

[31]     At the end of the day, in my opinion, the submissions of Mr Turner amounted to submissions that it was not open to the Tribunal, as a matter of law, to have put aside the possibility that the defects in the applicant’s evidence were not the result of medical condition, rather than evidence of fabrication of the underlying history.

[32]     However, I do not accept that the Tribunal’s conclusion could not be drawn. I accept the submissions of the Minister’s counsel that the reasoning of the High Court in relation to a similar contention in Minister for Immigration and Citizenship v SZGUR (supra) at [37] to [39] in the judgment of the Chief Justice and Kiefel J and [79] to [89] in the judgment of Gummow J, is applicable a fortiori.

[33]     I also accept that in the present case:

It was for the Tribunal to determine the weight to be given to an expert psychologist’s opinion, having regard to the other evidence before it that supported or undermined the supposed facts upon which the opinion was to be based. (See Kenny J in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [31])

Even supposing that the present STARTTS report could be charactered as “an expert psychologist’s opinion,” in my opinion, paragraph 74 of the Tribunal’s decision shows that it has carefully addressed the reasons for the applicant giving “generalised and vague evidence” from time to time, and whether this was a symptom of mental illness. It concluded, because of the contrasting nature of his presentation in the course of the hearing, in which he had also shown an ability to “recall precise details” of other aspects of his claims, that it should not assess the defective parts of his evidence benignly.

[34]     In my opinion, this reasoning was open to the Tribunal as a matter of law. It was rational, and open to the Tribunal on the evidence before it.

[35]    For all the above reasons, I am not persuaded that the submissions made to me today have identified any jurisdictional error affecting this decision. The decision is therefore a privative clause decision, and I must dismiss the application.

Grounds of appeal

12    In his notice of appeal, the appellant advanced the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

13    At the time of this hearing, no submissions had been received by the appellant.

14    The difficulty which confronts the appellant is that the Tribunal made findings that he was not a credible witness and that his claims to fear persecution for the reasons he gave were a fabrication. There can be no suggestion that the Tribunal’s findings of fact were not open to it. As a matter of law, this Court cannot, in the ordinary course, review findings of fact made by the Tribunal. That can occur only in exceptional circumstances, none of which are apparent in this case.

15    The Court cannot review the merits of the Tribunal’s decision.

16    As the first respondent submits, and I accept, the appellant’s notice of appeal appears to be a “template” document that does not relate to the grounds pleaded below. The appellant claims that the Tribunal acted unreasonably, and not in accordance with s 91R of the Migration Act 1958 (Cth) (the Act), or other requirements of the Act. He does not say in what way this is so. The claims that have been made by the appellant should not be permitted to be raised for the first time on appeal as they were not raised before his Honour, and are in any case meaningless in the absence of particulars.

17    For the reasons above, this appeal should be dismissed with costs.

Associate:

Dated:    9 August 2012