SZJOT v Minister for Immigration and Citizenship

[2008] FCA 258

FEDERAL COURT OF AUSTRALIA

SZJOT v Minister for Immigration & Citizenship [2008] FCA 258

SZJOT v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNAL

NSD 2133 OF 2007

LINDGREN J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2133 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

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

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 2133 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia, which was given on 10 October 2007.  That Court dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), dated 10 October 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.  The issue on the appeal is whether the Federal Magistrate erred in failing to find any jurisdictional error on the part of the Tribunal.

2. The Tribunal has filed a submitting appearance.

   The appellant’s claims

3. The appellant is a citizen of India, who arrived in Australia on 24 March 2006.  She lodged an application for a Protection (Class XA) visa on 5 May 2006.  The appellant claimed to fear persecution by reason of her political opinion.  In her visa application, she claimed to have been a member of the Radical Workers Union (RWU or the Naxalite Trade Union) which was under the control of the Communist Party of India (Marxist-Leninist) (CPI(ML)).  She said that she was a member and activist of its People’s War Group (PWG).    The appellant claimed to have left India due to her “past political and social activities with the CPI(ML) Group.”

4. In her visa application, the appellant claimed to fear being killed by political opponents of the groups with which she had been associated.

5. At the hearing before the Tribunal, the appellant elaborated upon her claims.  She said that after 1995 she worked for her party, the CPI(ML). When asked when she joined her party, she said that she joined the “CPI(M)” in 1991 and the PWG in 1995.  Before the Tribunal, the appellant made many claims, including:

   ·     a claim to have been detained briefly in 1996 along with others following a violent demonstration;

   ·     a claim to have been arrested in 1997;

   ·     a claim to have been imprisoned for three years, during which time she was starved, tortured and beaten with metal bars; and

   ·     a claim that she had been arrested in 2005 as a result of breaching the conditions of her release from prison and of cases pending against her in India.

6. Following the hearing, pursuant to s 424A of the Migration Act 1958 (Cth), the Tribunal wrote to the appellant setting out information that had come to light during the course of the hearing which might be the reason or part of the reason for deciding that she was not entitled to a protection visa and inviting her to comment on that information.

7. On 13 September 2006 the appellant’s adviser responded on her behalf and on 26 September 2006 and 9 October 2006 the Tribunal received documents in further support of her claims, including letters from the appellant’s parish priest in Sydney and her parish priest in Kerala.

   The Tribunal’s Reasons for Decision

8. In the Tribunal’s Reasons for Decision, the Tribunal member gave detailed reasons why the appellant’s evidence was not to be believed.  Little point would be served by my summarising the inconsistencies and lack of knowledge of the appellant in relation to matters which she might have been expected to know if her claims had been true, to which the Tribunal member referred.  Ms McWilliam, counsel for the Minister, in her written submissions, summarises the credibility findings of the Tribunal against the appellant as follows (references to the evidence are omitted):

   (a)   Written and oral claims being inconsistent, including failure to mention any of the appellant’s three arrests in her protection visa application;

   (b)   Inability to provide any meaningful information about cases that are pending against her;

   (c)   Ability to obtain a passport in her own name and exit India without any difficulties; and

   (d)   Inability to provide any information beyond the most banal generalities with regard to the PWG.

9. On the basis of the above, the Tribunal:

   ·Was not satisfied that the appellant had been a member of the PWG or had undertaken any activities on behalf of the PWG;

   ·Did not accept that the appellant feared the PWG or any of the other groups specified in her claims;

   ·Rejected the appellant’s claims of being detained, arrested or imprisoned in 1996, 1997 and 2005 and of being harmed in the ways mentioned in her claims;

   ·Was not satisfied that there were any pending cases against the appellant in India; and

   ·Did not accept that the appellant was assisted, as she had claimed, by an “agent” in obtaining a passport in order to depart India.

10. The Tribunal’s conclusion was that there was not a real chance that the appellant would face harm if she were to return to India.

    Application to the Federal Magistrates Court

11. In her amended application to the Federal Magistrates Court, the appellant contended that the Tribunal was biased, that the Tribunal had failed to allow for the appellant’s lack of ability in the English language, and that the Tribunal had failed to accept certain particular claims made by the appellant.

    The present appeal

12. The grounds of appeal are set out in the applicant’s notice of appeal as follows:

    1.        Refugee Review Tribunal’s decision affected by jurisdictional error.

    2.The FMC application in which I stated grounds and particulars, I still rely on it.

    3.        Amended notice of appeal will be filed when required.

13. No amended notice of appeal has been filed, and the appellant has appeared in Court today assisted by an interpreter.

14. I accept the submission of counsel for the Minister that the appellant seeks to re-agitate the complaints she made in the Federal Magistrates Court without pointing to any error on the part of the Federal Magistrate.

15. On the hearing today, the appellant mentioned again a particular matter to which she had referred in her amended application in the Federal Magistrates Court, namely, that it was wrong for the Tribunal to have relied on the fact that the appellant had not demonstrated a familiarity with the teachings of Mao.  She said that she was not well educated and that it was unfair to assess her credibility against her inability to articulate Mao’s teachings.  It is true that the Tribunal referred (at p 18 of the Tribunal’s Decision Record) to a claim that the appellant had made that she had been:

    …taught in Marxist-Lennon and Mao’s principles, involved in educating the poor, participated in enrolling new members and promoting the group’s [PWG’s] views and holding political classes for villagers.

16. Subsequently the Tribunal member said that country information revealed that the PWG was a Maoist group and traced its ideology to the Chinese leader, but that the appellant was not able to say much in response to a question about Mao and his beliefs.  The Tribunal member recorded that the appellant had demonstrated no knowledge of Mao and his ideas, particularly his key idea of violent revolution.

17. The assessment of the credibility of the appellant in the present respect was a matter for the Tribunal and it is not shown that the Tribunal member committed any jurisdictional error in the present respect.

18. The appellant also claimed in Court today that she is not well educated and had suffered from “stage fright,” perhaps a reference to both the hearing before the Tribunal and that before the Federal Magistrates Court.  Again, these claims are not a claim of jurisdictional error on the part of the Tribunal or error of any kind on the part of the Federal Magistrates Court.

19. Ultimately, the case is simply one in which the Tribunal member examined closely and in detail the claims made both in writing and orally by the appellant and did not believe her.

    Conclusion

20. No jurisdictional error has been demonstrated.  No error on the part of the Federal Magistrates Court appears either.  For the above reasons the appeal will be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:       29 February 2008

The appellant appeared in person.
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Date of Hearing:	29 February 2008
Date of Judgment:	29 February 2008