SZJWI v Minister for Immigration and Citizenship
[2010] FCA 225
FEDERAL COURT OF AUSTRALIA
SZJWI v Minister for Immigration and Citizenship [2010] FCA 225
Citation: SZJWI v Minister for Immigration and Citizenship [2010] FCA 225 Appeal from: SZJWI v Minister for Immigration and Citizenship [2009] FMCA 581 Parties: SZJWI
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP
and
REFUGEE REVIEW TRIBUNALFile number: NSD 727 of 2009 Judge: SIOPIS J Date of judgment: 16 March 2010 Date of hearing: 23 February 2010 Place: Perth (Heard Sydney) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Counsel for the Appellant: Mr B Zipser Counsel for the First Respondent: Ms A Mitchellmore
Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 727 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZJWI
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
16 MARCH 2010
WHERE MADE:
PERTH (HEARD SYDNEY)
THE COURT ORDERS THAT:
1.The appeal is 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.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 727 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZJWI
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
16 MARCH 2010
PLACE:
PERTH (HEARD SYDNEY)
REASONS FOR JUDGMENT
The appellant, who is a Buddhist monk, and a citizen of India, arrived in Australia in March 2006. In May 2006, the appellant applied for a protection visa. The visa application was supported by a five page statutory declaration, in which the appellant claimed that he feared persecution if he were to return to India, on a number of grounds.
First, the appellant said that he feared persecution because he was a “Bangal” being a descendant of persons who migrated to Assam, in India, from Bangladesh.
Secondly, the appellant claimed that he feared persecution on religious grounds because he was a Buddhist.
Thirdly, the appellant stated that he feared persecution on political grounds because of the political stance which he had taken in support of minority group causes. In this regard, the appellant said that he was an activist for Buddhist welfare and that he had joined the political party, Asom Gana Parishad (AGP). He claimed that he had achieved a profile in the AGP Party and had made political enemies. These were members of the Congress Party and also the United Liberation Front of Assam (ULFA). The appellant stated that he had been abducted by the ULFA because of his association with the AGP and had been tortured and had been forced to work for them before being released in January 2006. He went on to claim that, after he was released, he was accused by the Congress Party of being a member of the ULFA and he was reported to the police, who had harassed him. The appellant claimed that if he returned to India he would be harmed by the Congress Party and the ULFA.
In June 2006, a delegate of the first respondent (the Minister) refused to grant the appellant a protection visa. The delegate rejected the appellant’s claim on credibility rounds. It was said that his claims were vague and lacking in specific detail.
THE TRIBUNAL
In July 2006, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.
On 20 August 2006, the appellant provided a number of documents to the Tribunal. One document was a letter from Dibrugarh Bauddha Samity dated 15 June 2006 (the DBS letter). The letter said that the appellant was a Buddhist monk and known to the author of the letter. The letter went on to state that appellant participated in movements at different periods of time “to establish the rights of minorities in general and Buddhists in particular in Assam” and was also an active group leader of AGP. The letter went on to say:
He came at the attention of opponent activists and he became a victim of persecution. To escape persecution he left India. I attached his many activists roles of pictures.
He is one of the active valuable members of our organization. He was target person of ULPA group. I believe he will be a victim of persecution on his return back to India.
In November 2006, the Tribunal made a decision affirming the delegate’s decision not to grant the appellant a protection visa. This decision was set aside in January 2008 by consent and the matter was remitted to the Tribunal to be determined according to law.
In April 2008, the appellant provided further documents to the Tribunal. One such document was a letter dated 20 April 2008, on Asom Gana Parishad letterhead (the AGP letter) which said that the appellant had been working as a member of Asom Gana Parishad in the district of Dibrugarh since “10-1-2000”.
By a decision signed on 2 October 2008, the Tribunal affirmed the decision of the delegate. The Tribunal rejected the appellant’s application for review on credibility grounds.
PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT
The appellant brought an application for judicial review of the Tribunal’s decision. The grounds of review were set out in the appellant’s amended application for review. The amended grounds state:
1The [appellant] provided to the Tribunal, among other documents, a letter from Dubragarh Bauddha Samity dated 15 June 2006 and from Asom Gana Parishad dated 20 April 2008. If the contents of the letters are true, they support the [appellant’s] claims that he was a refugee. The Tribunal fell into jurisdictional error in dealing with the letters.
2The Tribunal reasoned that, because there were inconsistencies and omissions in the [appellant’s] evidence, he was not a witness of truth. This reasoning process is illogical, giving rise to jurisdictional error.
In a detailed judgment, the Federal Magistrate dismissed both grounds of review.
In support of the first ground of review, counsel for the appellant contended before the Federal Magistrate that the Tribunal had not referred to the DBS letter of 15 June 2006, in that part of its decision headed “Findings and Reasons” and it was to be inferred that the Tribunal had overlooked the letter. Further, it was contended that the Tribunal could only have rejected the letters if they were fabricated, but the Tribunal had not raised this issue with the appellant and, therefore, contravened s 425 of the Migration Act 1958 (Cth) (the Act).
The Federal Magistrate held that the failure of the Tribunal to refer to the DBS letter of 15 June 2006, in that part of the Tribunal’s reasons which fell under the heading of “Findings and Reasons”, did not amount to a jurisdictional error. The Tribunal, said the Federal Magistrate, had mentioned the letter in another part of its reasons and the letter “conspicuously lacked any detail”. The Federal Magistrate found that it was not necessary for the Tribunal to refer in its written reasons to every piece of evidence and every contention made by an applicant before the Tribunal. The Federal Magistrate observed at [52]:
A jurisdictional error will only exist if the failure to mention a particular piece of evidence supports an inference that the Tribunal had failed to consider the claim advanced by the applicant.
The Federal Magistrate found that the Tribunal had addressed each of the incidents of claimed persecution advanced by the appellant and so had considered the appellant’s claim.
Further, the Federal Magistrate found that the Tribunal had not made any finding to the effect that the letters were fabricated. The Tribunal had considered the letters and given them no weight. This was open to the Tribunal in light of the credibility findings it had made. Thus, said the Federal Magistrate, there was no contravention of s 425 of the Act. The Federal Magistrate dismissed the first ground of review.
The Federal Magistrate dismissed the second ground of review founded upon a contention that the reasoning of the Tribunal was illogical. No appeal is brought in respect of that finding.
THE APPEAL
The appellant filed a notice of appeal on 16 July 2009, which contained six grounds of appeal.
However, at the hearing before me, the appellant, who was ably represented by Mr Zipser, relied only upon ground four of the grounds of appeal. That ground of appeal contended, in substance, that the Federal Magistrate had erred in failing to find that the Tribunal had fallen into jurisdictional error in the manner in which it had dealt with the two letters, namely, the DBS letter and AGP letter, in assessing the appellant’s claim.
The appellant contended that the Tribunal had failed to take into account the DBS letter in its reasoning process. The appellant said that the failure to have regard to probative evidence in reaching its conclusions could comprise jurisdictional error. The Tribunal, contended the appellant, had fallen into jurisdictional error of this nature, and the Federal Magistrate had erred in failing so to find.
The appellant relied upon a number of grounds for the inference that the Tribunal had not taken the letters into account.
First, the Tribunal had not referred to either of the two letters in that part of its decision record under the heading “Findings and Reasons”. The appellant said that the letters were of sufficient importance in the assessment of the appellant’s claim, particularly the letter of 15 June 2006, that, had they been taken into account by the Tribunal, one would have expected that the Tribunal would have openly referred to the letter and have “grappled” with the content of the letter.
Secondly, the appellant referred to [115] of the Tribunal’s decision, where the Tribunal observed:
The [appellant] provided several letters to the Tribunal. None of these mention any harm to, or persecution of, the [appellant] in India. The [appellant’s] representative addressed this issue by saying that the [appellant] did not wish to widely publicise the news that he had been persecuted. He did not wish to make available information that may have led his colleagues and friends to conclude that he had done something wrong.
The appellant pointed out that the DBS letter of 15 June 2006, had referred to the appellant being the victim of persecution, and so did not fall within the category of letters referred to in [115] of the Tribunal’s decision. The inference, said the appellant, was that the Tribunal had simply ignored or forgotten about the DBS letter of 15 June 2006.
A jurisdictional error will occur if the Tribunal fails to consider a claim advanced by an applicant. For the Tribunal to carry out its task, it must consider the integers of an applicant’s claim. Thus, if it fails to deal with an important piece of evidence tendered in support of an applicant’s claim, or fails to consider a significant contention advanced by an applicant, this may show that the Tribunal has not dealt with a claim, and that it has, accordingly, fallen into jurisdictional error. It is, however, certainly, not the case that the Tribunal has to refer in its decision to every item of evidence and every contention. Whether the failure to refer to and deal with certain items of evidence and certain contentions means that there has been a failure to deal with the claim, such as to constitute a jurisdictional error, will depend upon the facts of each case (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20-21).
However, in this case, I am of the view that the Federal Magistrate did not err in determining that the Tribunal did not fall into jurisdictional error. This is because the appellant has failed to discharge the onus of showing that the Tribunal did not take into account the two letters.
As to the DBS letter of 15 June 2006, the Tribunal refers expressly to that letter in [39] of its reasons where it is reciting the evidence. It is the fact that the Tribunal does not refer specifically to that letter in that part of its decision record where it makes findings adverse to the appellant. However, I do not infer from that fact that the letter was not taken into account. The Tribunal had come to a negative view of the credibility of the appellant, particularly, in relation to his contradictory evidence in relation to his detention. Further, the appellant’s explanation as to why he, an activist for minority causes, would join the AGP, a party hostile to minority causes, was unsatisfactory. Further, as the Federal Magistrate stated, the letter lacked any detail and, in my view, was not deserving of being accorded weight.
Further, by referring to the letters in [115] of its reasons, the Tribunal was making a discrete point. The point that the Tribunal was making by referring to the number of letters which made no reference to the appellant being persecuted, was that the omission to make that reference was surprising, if indeed the appellant had been persecuted. It does not follow from that reasoning, that the Tribunal was unaware of, or ignored the DBS letter which had made a reference to the appellant being persecuted.
As to the AGP letter of 20 April 2008, the Tribunal dealt with that letter in [98] of its reasons. However, it placed no weight on it in light of the negative view that it had taken of the appellant’s credibility and the absence of identification of the writer or verification of his claimed position. It did not fall into jurisdictional error in doing so. It was open to the Tribunal to place no weight on the letter. Aside from the matters referred to by the Tribunal, the contents of the letter comprised generalised assertions.
The Federal Magistrate did not err in concluding that the Tribunal had made no finding to the effect that the letters were fabricated, and in concluding that the Tribunal was entitled to accord the letters no weight.
It follows that the appeal is dismissed.
The Court expresses its appreciation to Mr Zipser for his assistance as pro bono counsel for the appellant.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 16 March 2010
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