FEDERAL COURT OF AUSTRALIA

CZBE v Minister for Immigration and Citizenship [2013] FCA 203

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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 a Federal Magistrate delivered on 30 August 2012 (CZBE v Minister for Immigration and Citizenship [2012] FMCA 953) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The appellant is a citizen of India who arrived in Australia on 28 February 2011. On 24 May 2011, the appellant applied for a protection visa. On 15 August 2011, a delegate of the first respondent (the Minister) made a decision to refuse the appellant’s application for such a visa. On 22 September 2011, the appellant sought review of the delegate’s decision in the Tribunal. The Tribunal affirmed the decision of the delegate on 22 February 2012.

Background

3    The appellant claimed that he and his father were members of the Bahujan Samaj Party (BSP). The appellant claimed that, as a result of his father’s and subsequently his own activities, he had become well known to an opposition party in India and that his family had been threatened by members of that party. He claimed that on one occasion he had been kicked and beaten resulting in injuries to his mouth. He also claimed that he had been threatened with death and that this had prompted him to leave India.

The Review in the Tribunal

4    The Tribunal had a number of concerns about the appellant’s evidence. The Tribunal found that the appellant was not a credible witness and had not been truthful in the evidence which he gave in relation to his experiences in India, his reasons for leaving India and his fears about returning to India.

5    At [56]–[60] of the Tribunal’s Decision Record, the Tribunal set out the particular matters which had led it to express the conclusions which I have summarised at [4] above.

6    At paragraph [61]–[64] of its Decision Record, the Tribunal said:

61.    The Tribunal finds the above concerns so significant that it is not satisfied that the applicant is a credible witness or that any of his claims (other than his identity and nationality) are true. Given the number and significance of the inconsistencies in the applicant’s evidence, the Tribunal does not consider that these can be explained by nerves or language difficulties (given that an interpreter was used, no issues have been raised about the quality of the interpreting and there did not appear to the Tribunal to be any difficulties with the interpreter). The applicant also claimed on a number of occasions, in response to inconsistencies put to him at the hearing, that he was not aware of what was in his written statement and this explained some of those inconsistencies. The Tribunal does not accept this explanation because he stated at the beginning of the hearing that he himself had read the statement (although he could not understand all of it), his friend had checked the statement for accuracy and he was confident that the statement was correct. He also asserted the correctness of much of the written statement in his s.424A response. Furthermore, this fails to explain the inconsistencies between the applicant’s oral evidence to the Department and the Tribunal.

62.     For the reasons given above, the Tribunal does not accept that the applicant and/or his father were involved in politics in India or were members of the BSP, BJP or Congress Party, that they were attacked by any political opponents or that there is a real chance that they would be attacked by political opponents if they were to return to India.

63.     The Tribunal has considered the applicant’s statement in his s.424A response that he can provide further documentation if required. The applicant has not indicated an intention to provide any particular documentation or evidence or a date by which he intends to provide it. The Tribunal discussed with the applicant whether he had any documentation at the hearing and following the hearing has provided time which would enable him to provide any evidence he wished to. No further evidence or documents have been provided. The Tribunal considers that the applicant has been provided with a reasonable opportunity to provide any evidence he wants to.

64.     Having considered the applicant’s circumstances singularly and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he were to return to India now or in the reasonably foreseeable future.

The Proceeding in the Federal Magistrates Court

7    In his Application for judicial review in the Federal Magistrates Court, the appellant specified the following grounds of review:

1.    The tribunal failed to carry out its review function and to exercise its jurisdiction.

Particular of Grounds

a.    The tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition party members and harassed because of the applicant’s father membership with BSP party.

b.    In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future, opposition members will seriously harm him.

2.    The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

3.    The applicant 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.

8    As far as ground 1 relied upon by the appellant was concerned, the Federal Magistrate found that it was clear on the face of the Tribunal’s Decision Record that it had had regard to its proper function as a reviewing tribunal and had considered each of the contentions raised by the appellant. His Honour noted two matters which his Honour considered were fatal to the appellant’s prospects of success on the first ground.

9    First, his Honour held that the numerous findings made by the Tribunal that the appellant was not a witness of truth were not open to review by the Federal Magistrates Court as any such review invited impermissible merits review.

10    Second, his Honour held that, even if it could be said that the Tribunal did not properly review all of the appellant’s evidence and claims at the time of the hearing (a matter which, in the opinion of his Honour, could not be said), the Tribunal subsequently wrote to the appellant setting out 16 items in respect of which it sought clarification and thereby afforded the appellant a fair and reasonable opportunity to provide further evidence.

11    As far as ground 2 was concerned, the Federal Magistrate found that it amounted to no more than the appellant disagreeing with the Tribunal’s decision on the merits. He found that this was not a permissible ground of review.

12    The Federal Magistrate found that ground 3 had not been made out because it was clear on the face of the Decision Record of the Tribunal that the Tribunal had correctly instructed itself as to the definition of refugee under the Convention. The Federal Magistrate found that not only had the Tribunal applied the correct definition, but it had considered all of the appellant’s claims against that definition.

The Appeal in this Court

13    On 14 September 2012, the appellant filed his Notice of Appeal in this Court. In that document, the appellant specified the following grounds of appeal:

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 learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

14    Ground 1 appears to raise a contention that the decision of the Tribunal is susceptible to attack by reference to the principles discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corp (Wednesbury) (1947) 45 LGR 635; [1948] LJR 190; [1947] 2 All ER 680; (1947) 112 JP 55; [1948] 1 KB 223. This was not a ground relied upon before the Federal Magistrate. It is hopeless when regard is had to the terms of the Tribunal’s Decision Record. I reject that part of ground 1 which relies upon Wednesbury unreasonableness.

15    Insofar as the appellant seeks to invoke s 91R of the Migration Act 1958 (Cth) (the Act) and other unspecified statutory obligations, I also reject those assertions. The Tribunal correctly set out the legal framework within which the appellant’s application fell for consideration, including the requisite satisfaction required under ss 36(2)(a), 65(1) and 91R of the Act and the elements of Art 1A(2) of the Convention.

16    The Tribunal considered the appellant’s evidence and claims but rejected them, principally because the Tribunal did not accept the truthfulness of those claims. Ground 2 raises in a general way impermissible merits review. That is a not a ground that can be agitated in this Court in respect of the Federal Magistrate’s decision. I reject ground 2.

Conclusions

17    For all of the above reasons, the appeal must be dismissed with costs.

18    There will be orders accordingly.

Associate:

Dated:    8 March 2013