SZHZL v Minister for Immigration and Citizenship

[2007] FCA 258

FEDERAL COURT OF AUSTRALIA

SZHZL v Minister for Immigration and Citizenship [2007] FCA 258

SZHZL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2164 OF 2006

ALLSOP J
2 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2164 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.The application for adjournment made on Friday 23 February 2007 be refused.

3.The appeal be dismissed.

4.The appellant pay the costs of the respondents.

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 2164 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	2 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by the Federal Magistrates Court dismissing an application for judicial review of a decision for the Refugee Review Tribunal (the “Tribunal”) affirming a decision of a delegate of the Minister not to grant a protection visa.

2. The notice of appeal contained thirteen grounds of appeal, the first twelve of which are substantially identical to the twelve grounds specified in the amended application that was before the Federal Magistrates Court.  In effect, with the addition of ground 13, the error of the Federal Magistrate is said to be the failure to find error in the Tribunal’s approach in the manner identified in the amended application (and substantially repeated in the notice of appeal).

3. The appellant filed no written submissions in support of his appeal.  After Mr Jordan had put some brief oral submissions about ground 13, the appellant was given a further opportunity to deal with Mr Jordan’s brief oral submissions.  He put forward no substantive submissions, but, for the first time, stated that he needed time to get documents from India.  The following is recorded in the transcript:

   “His Honour:     No, I don’t.  Appellant, is there anything arising from what Mr Jordan said that prompts you to want to say anything?

   The Interpreter:   To get the documents from India to prove that I’m not a Naxolite, it’s not really easy to get the documents from India.  It will take some more time for me to get those documents to prove that I’m not a Naxolite because the process is very slow there and takes a while to get the documents.

   His Honour:       Well, this is an appeal from the Federal Magistrate.  Are you making an application for an adjournment so that you can lead fresh evidence on the appeal?

   The Interpreter:   The documents are a very important part of this case and I would request you to grant me some more time for getting the documents.

   His Honour:       What are the documents that you want to bring from India.

   The Interpreter:   They destroyed my property, my house, including the shop, the electrical shop in the town that I was living and I need to get the documents regarding the destruction and the threats which were sent out to us and also the newspaper evidences about such threats and destruction.

   His Honour:       Is that a complete description of the documents you want to bring?

   The Appellant:    That’s it, yes.”

   (It can be inferred from the nature of the appellant’s claims before the Tribunal that there is a typographical error in the second paragraph above.  The word “not” before “Naxolite” should not be there.  The appellant’s claims involved the assertion that he was a Naxalite.)

4. I took this as an application for an adjournment of the appeal to allow the collection from India of documents that could be tendered as fresh evidence on the appeal under s 27 of the Federal Court of Australia Act 1976. I told the parties that I would consider the application for the adjournment on reserving and that if I thought that there was a basis for the adjournment I would call the parties back for further argument.  There is no basis for an adjournment and I reject the application for it.  My reasons for doing so are that the description of the documents given to me by the appellant provides no basis for thinking that there would be any legitimate basis for concluding that they would bear upon the issues raised for decision before the Federal Magistrates Court and on the appeal.

5. I have annexed the relevant pages of the notice of appeal setting out the grounds of appeal to these reasons as annexure A.

6. The appellant is an Indian national.  He claimed to fear persecution in India for reason of political opinion arising from his activities as a member of the Naxalite Movement.  He claimed, that, as a result of these activities, he had been detained and beaten by police.  He also claimed that his father had been kidnapped by thugs.  The Tribunal set out a summary of these claims at pages 4 and 5 of its reasons for decision.

7. At the hearing conducted by the Tribunal at which the appellant attended, the appellant was asked to expand upon his knowledge of the Naxalite Movement.  From the answers given by the appellant the Tribunal formed the opinion that he had a lack of knowledge about the Naxalites which suggested that his claims were not credible.  At pages 5, 6 and 7 of its reasons the Tribunal set out in some detail the exchange at the hearing in this regard.

8. In its findings and reasons the Tribunal concluded that having had the opportunity to explore with the applicant his claims and to observe him at the hearing, looking at the evidence as a whole, the Tribunal was not satisfied that he was a credible witness.  The Tribunal found that he had fabricated his claims to support his application for a protection visa.  This conclusion was based on the appellant’s apparent lack of knowledge in relation to the Naxalites and the vagueness, confusion and inconsistencies in his evidence given at the hearing.  These reasons are contained in the discussion by the Tribunal at pages 8, 9 and 10 of its reasons.

9. The Tribunal then went on to consider the appellant’s evidence that when he was a child his grandparents had been harassed by local political people demanding money and support.  The Tribunal noted that this claim was not related to the appellant’s claims in relation to the Naxalite Movement.  The Tribunal was not satisfied in this regard that the demands on his grandparents constituted serious harm as contemplated by the Migration Act 1958 (Cth) or gave rise to any well-founded fear of persecution.

10. The Tribunal also considered the appellant’s evidence that he had been subjected to corruption in seeking public sector employment.  In the light of the Tribunal’s adverse credibility finding and looking at the evidence as a whole the Tribunal was satisfied that the appellant had exaggerated when asserting that he had been affected by corruption.

11. Given that the grounds of the appeal are substantially identical to the grounds before the Federal Magistrate it is necessary to understand how the Federal Magistrate approached the grounds before her.  After setting out the nature of the appellant’s claims and the approach of the Tribunal the Federal Magistrate dealt with each of the grounds of the amended application. 

12. In relation to the first two grounds the Federal Magistrate stated that these grounds did not establish jurisdictional error even if made out.  I agree.  Whether or not the Tribunal reached the correct conclusion as to whether or not the appellant was a refugee is not a relevant statement of error by the Tribunal.  This is simply another way of stating that as a matter of fact the Tribunal reached the wrong decision.

13. The third ground does not likewise identify any jurisdictional error.  The Federal Magistrate was of the view that credibility was a matter for the Tribunal and that there was nothing in the material before the Court to suggest that the Tribunal failed to consider any aspects of the appellant’s claims.  In the light of the terms of the Tribunal’s reasons, I agree.  I see no basis for any conclusion of error in the Federal Magistrate’s reasons in this regard.

14. Likewise, the fourth ground can be seen as simply a complaint about the factual conclusion of the Tribunal.  The assertion that the appellant should have been given the benefit of the doubt does not raise any jurisdictional error.  Ground four does not appear to have been directly addressed by the Federal Magistrate.  However, it may be taken to have been swept up in her dealing with ground three.  In any event, there is no asserted jurisdictional error and nothing flows from the failure to specifically address ground four.

15. Ground five is a complaint about the vagueness of the Tribunal’s reasons.  The Federal Magistrate concluded that the Tribunal gave reasons for its conclusions that the appellant’s evidence was unsatisfactory.  I agree that reasons were given and that there was no jurisdictional error disclosed in this.

16. Ground six asserts that the appellant was “confused and mentally blocked” at the time of the hearing before the Tribunal.  I take this as an assertion that the appellant was not in a fit state to have a hearing.  The ground asserts that the Tribunal should have taken this from the nervousness of the applicant.  The Federal Magistrate said that there was no evidence before the Court to support a contention let alone a finding that there was jurisdictional error by reason of the appellant being in a state that was unfit for the hearing.  The Federal Magistrate said that the only evidence of what occurred at the Tribunal hearing was in the Tribunal’s summary in its reasons.  She said that from this material it was apparent that the applicant did give answers which could be described as confused and internally inconsistent although the Tribunal gave the appellant an opportunity to clarify his answers.  In my view it was open to the Federal Magistrate to conclude in this way.  There was no evidence before her that could be relied upon to put in doubt the mental adequacy of the appellant on the occasion of the Tribunal hearing.

17. Ground seven was once again plainly a simple statement of the factual issue which the appellant says the Tribunal should have found.  It provides no foundation for any argument of jurisdictional error.

18. Ground eight was an allegation in effect of bias.  The Federal Magistrate came to the view that there was no basis upon which apprehended or actual bias could be concluded.  Having read the Tribunal’s reasons, the court book and the Federal Magistrate’s reasons I agree.

19. As to ground nine, the Federal Magistrate said that this was an assertion that the matter was not considered properly and therefore the appellant was denied procedural fairness. The Federal Magistrate noted that this ground was not particularised. The Federal Magistrate concluded that there was no lack of procedural fairness apparent from the material before her. On this basis it was unnecessary for the Federal Magistrate to consider the reach of s 422B of the Migration Act.  Her Honour found that there was no basis to conclude that there was any denial of procedural fairness.  On the material before her Honour I agree.

20. Ground ten appears to be a complaint that third party sourced information was used.  As the Federal Magistrate found, the Tribunal was entitled to rely upon independent country information.  The Federal Magistrate found no error on the part of the Tribunal by so doing.  I agree.

21. Ground eleven is a ground directed once again to the merits of the case and there does not appear to be any basis to conclude that there was any error by the Tribunal.

22. Ground twelve is an unparticularised assertion of legal, factual and jurisdictional error.  Without any supporting particulars or submissions I see no error in the Federal Magistrate’s conclusion that this did not establish error.

23. Ground thirteen appears to be an assertion that the Tribunal failed to approach its decision in a liberal manner.  To use the words of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451:

    “in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…”

24. Having read the Tribunal’s reasons and the material in the court book I see no error in approach taken by the Tribunal.

25. None of the grounds of appeal set out in annexure A could be legitimately advanced in any way by the kind of material to which the appellant referred in his request to obtain documents from India.  They may or may not be documents which assist him in the underlying factual questions as to his treatment in India.  These were matters for the Tribunal to deal with, which it did.  There is no basis to conclude that the Tribunal denied him procedural fairness.  Therefore these documents would appear to be irrelevant before both the Federal Magistrates Court and this Court.

26. It should also be noted that in the present case the appellant was apparently given the opportunity to address the issues upon which the Tribunal’s decision was based.  It was those issues that were identified by the Tribunal during the hearing.  As such it would not appear to be any basis to argue that there was any procedural unfairness by reference to the kind of considerations discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [32]-[44].

27. In the circumstances the orders of the Court will be:

    1.The title of the first respondent be amended to named the “Minister for Immigration and Citizenship”.

    2.The application for adjournment made on Friday 23 February 2007 be refused.

    3.The appeal be dismissed.

    4.The appellant pay the costs of the respondents.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:       2 March 2007

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 February 2007
Date of Judgment:	2 March 2007

Annexure A