SZEUW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1344

FEDERAL COURT OF AUSTRALIA

SZEUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1344

Federal Court of Australia Act 1976 (Cth) s 25(1A)
Migration Act1958 (Cth) s 424A

SZEUW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1157 OF 2005

HELY J
13 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1157 OF 2005

BETWEEN:	SZEUW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	13 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1157 OF 2005

BETWEEN:	SZEUW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	13 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from Mowbray FM dismissing an application for judicial review of a decision given by the Refugee Review Tribunal (‘the RRT’) which affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge.

2. The appellant is a Tamil-speaking Muslim from Tamil Nadu who claims that he has a well-founded fear of persecution in India by reason of his religious beliefs and political opinion and because of his membership of the Muslim political parties known as the TMMK and the DMK.  The RRT accepted that the appellant was a supporter of these political parties, but found that much of his evidence on critical matters which went to the heart of his claims was variously confused, incoherent, implausible or inconsistent.  For reasons which the RRT gave, it did not accept any of the central elements of the appellant’s claims.  The RRT expressed its conclusions as follows:

   ‘After careful examination of all the evidence before me relating to:

   (1)the lack of substantiating documentary evidence or a plausible reason for this;

   (2)the inconsistencies and implausibilities in the Applicant’s evidence relating to his alleged political activities and the reasons for his alleged jailing (twice);

   (3)the lack of a satisfactory reason for his delay in departing India as soon as possible after legally obtaining his passport;

   (4)the unsatisfactory reason given by him for his inability to relocate to Mumbai; and

   (5)the recently enunciated personal reasons for his wish to remain in Australia;

   I am satisfied that the Applicant’s claims for refugee status are a complete fabrication and without foundation. 

   In summary I am satisfied that the Applicant has never suffered persecution in India because of his political opinions and does not have a genuine fear of suffering persecution in India for a Convention-related reason.’

3. In the Federal Magistrates Court the appellant relied on four grounds in support of his contention that the RRT committed a jurisdictional error.  Those same grounds are relied upon by the appellant in this Court in the document styled ‘Appellant’s Outline Submission’ which was filed on 5 September 2005.  Whilst that document repeats those grounds it does not elaborate upon them.  The first ground is that the decision of the RRT was not made in good faith.  Nothing other than the RRT’s reasons for decision was relied upon to support this allegation.  The mere fact that the RRT did not accept the appellant’s claims provides no foundation for an accusation of lack of good faith.  A reading of the RRT’s reasons for decision indicates that it made a conscientious effort to discharge its statutory function.  There is simply no foundation for a conclusion that it acted in bad faith.  Mowbray FM correctly rejected this ground.

4. The second ground is that the RRT’s expectation that the appellant would be able to replace documents which were burnt should have been put to him.  The context in which this ground arises is that the RRT disbelieved the appellant’s claim that documents which would prove that he was a leading member of the TMMK and the DMK had been destroyed in a fire in his parents’ home after he left India.  The RRT added that in the unlikely event that this claim was true, the appellant had had three years to obtain replacement documents. 

5. The lack of documentation to support the appellant’s claimed membership of political parties was an issue before the RRT because the delegate’s decision referred to the absence of documentary proof as a reason for rejecting the appellant’s claims.  This issue was addressed in the appellant’s statement dated 8 October 2003 reproduced at page 105 of the appeal papers.  The passage in the RRT’s decision of which the appellant complains is simply part of the RRT’s process of reasoning on this issue, and there was no obligation on the RRT to disclose its reasoning process to the appellant in advance.  Mowbray FM correctly rejected this ground and I agree with his Honour’s reasons for so doing.

6. The third ground is alleged mistakes by the RRT in transcribing the evidence.  Mowbray FM observed that there was no evidence before him capable of sustaining that ground.  In any event, his Honour considered that the particulars provided in support of the ground suggested that the appellant was really seeking to cavil with the RRT’s findings of fact, which he was not entitled to do.  The appellant has to understand that it was for the RRT to decide factual issues and it was Mowbray FM’s function to decide whether the RRT had committed errors of law which amounted to a jurisdictional error.

7. It was not clear to Mowbray FM what the fourth ground was intended to convey.  The best that Mowbray FM could make of it was that it was simply a repetition of ground two.  For my part, I am unable to extract from the fourth ground any more than that, and I agree with Mowbray FM’s decision in this respect.

8. In addition to the four grounds relied upon by the appellant, Mowbray FM considered whether two other issues might have been indicative of error. First, Mowbray FM considered whether there was a contravention of s 424A of the Migration Act1958 (Cth) by reason of the RRT’s failure to give prior written notification to the appellant of any concern which the RRT had in relation to the involvement of Mr Jahir Hussein in the preparation of the appellant’s statements. Mowbray FM came to the conclusion that there was no such breach because whilst this matter was raised at the hearing before the RRT, any involvement of Mr Hussein was not mentioned at all in the findings and reasons section of the RRT’s decision. It was not therefore information that was so integral to the reasoning process involved in the rejection of the appellant’s claim that considerations of fairness required its prior disclosure. I agree with his Honour’s decision in this respect.

9. Finally, Mowbray FM expressed dissatisfaction with the RRT’s reasoning process on the issue of relocation which suggested that the RRT might not have addressed the correct question, namely, whether the appellant could reasonably be expected to relocate within India.  Mowbray FM found that the RRT’s reasoning on the relocation question was not integral to its decision because in view of the RRT’s finding that the appellant did not have a well-founded fear of persecution in his home area, questions of relocation did not arise.  Thus, even if the RRT did not correctly address the relocation issue, this could not amount to a jurisdictional error, as the RRT’s decision was independently sustained by its finding in relation to the lack of a well-founded fear of persecution in the appellant’s home area.  I agree with the decision of Mowbray FM in this respect.

10. When the matter came on for hearing before me this morning, the appellant appeared for himself without the benefit of legal representation but with the assistance of an interpreter.  I appreciate the difficulties with which a person in that situation is confronted but, nonetheless, the problem for the appellant is that he has not articulated or demonstrated any error in Mowbray FM’s treatment of the grounds upon which the appellant relied at first instance, or in relation to the two other matters to which Mowbray FM gave independent consideration.  In those circumstances the appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             22 September 2005

The appellant appeared in person
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 September 2005
Date of Judgment:	13 September 2005