SZKMP v Minister for Immigration and Citizenship

[2007] FCA 1646

FEDERAL COURT OF AUSTRALIA

SZKMP v Minister for Immigration and Citizenship
[2007] FCA 1646

SZKMP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1194 OF 2007

RARES J
25 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1194 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKMP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	25 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,500.

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 1194 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKMP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	25 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is a purported appeal from a decision from the Federal Magistrates Court:  SZKMP v Minister for Immigration [2007] FMCA 902. The trial Judge dismissed the proceedings under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the appellant had failed to demonstrate an arguable case of jurisdictional error. Such a judgment is an interlocutory judgment and requires leave to appeal: Re Luck (2003) 203 ALR 1 at 3‑4 [6]-[10] per McHugh ACJ, Gummow and Heydon JJ.

2. The applicant has not formally sought leave to appeal but I have treated this application as one in which in substance he has done so.  He has addressed his argument to the questions whether the decision of the Federal Magistrates Court was affected by error and as to whether the decision of the Refugee Review Tribunal in respect of which he sought constitutional writ relief in the court below was similarly affected.

3. Before a court, entertaining an appeal by way of rehearing, can exercise its appellate powers it needs to be satisfied that there was an error on the part of the primary decision maker.  The right of appeal by way of rehearing in this Court is to be exercised only if there is something to indicate that there is an error to be corrected: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14] per Gleeson CJ, Gaudron and Hayne JJ.

4. The applicant is a citizen of India who arrived in Australia in October 2006.  A month later he applied for a protection visa which was promptly refused.  He then applied to the Refugee Review Tribunal for a review of that decision.  On 1 March 2007 the tribunal affirmed the decision not to grant a protection visa to the applicant.  His Honour held a show cause hearing and dismissed the application for constitutional relief.  He dealt with the allegations that the tribunal had exhibited actual bias and illogicality in its findings.  His Honour also considered the matter on the basis of an argument that the tribunal failed correctly to find facts and made a number of factual errors.  There was no transcript tendered before his Honour. 

5. The tribunal had proceeded on the basis that the applicant claimed to have been a member of the Untouchable or Dalit caste of Hindus and that he had claimed to have protested on behalf of the rights of Dalit labourers.  He said that he had a fear of being persecuted in India for reasons of his membership of a particular social group or his political opinion based on his membership of the caste and his agitation on behalf of the labourers.  The applicant had claimed to be a local leader of a Dalit rights group in Kerala, an Indian state, and that on 30 August 2003 he had led a demonstration against a large corporate employer on behalf of Dalit workers and residents negatively affected by the corporation’s practices.  He claimed to have been detained and to have had attributed to him the profile of a terrorist by the Indian authorities.  He claimed that he escaped police custody through bribes raised by members of his community.  He later claimed to have moved to other parts of India, including Mumbai.  He claimed that in Mumbai the local police were about to arrest him as a potential suspect in a local bombing incident that occurred in November 2005.  He claimed to have been unable to find or retain work after the incident in 2003 and to have been helped by a relative’s financial assistance to leave India before he was arrested.  He claimed to have been unjustly labelled as a terrorist just for having worked for Dalit rights.

6. The tribunal was not impressed with the applicant’s credibility.  It found that he had plagiarised the information about the 20 August 2003 protest and related events in order to place himself in those events.  In coming to that view the tribunal had relied on the delegate’s ascertainment that the material submitted in the protection visa claim form was identical in the reportage in a named internet website account of the same incident. It found him to be implausible and unconvincing concerning his account of knowing that the police were about to target him as a suspect in the alleged November 2005 bombing. 

7. The tribunal gave the applicant a notice under s 424A of the Migration Act 1958 (Cth) inviting him to comment on the plagiarism matter. The letter gave details of the website address from which the plagiarism was suggested to have occurred. The applicant replied to the letter from the tribunal accusing the delegate of bias and of failing to weigh properly his claims of fact.

8. The tribunal said it considered whether the applicant or someone assisting him might have resorted to a borrowed text in order to help him with the burdensome and complex task of describing an actual danger faced by him but it came to the view that in light of the implausibility and unreliability of his other evidence concerning his escape from Kerala and his predicament in Mumbai, ‘… the “experiences” at the heart of [his] claims have been lifted from the website entirely in bad faith’. 

9. The tribunal was not satisfied on the applicant’s evidence that any of his substantive claims were reliable and said that it was not even satisfied on his evidence that he was a Dalit.  Accordingly the tribunal was not satisfied that the applicant faced a real chance of being persecuted in India and that he had no well-founded fear of persecution. 

10. His Honour considered the claims for relief and noted that he had afforded the applicant an opportunity to put on evidence of the transcript of what occurred before the tribunal but that was not taken up.  He said that although the adverse credibility findings made by the tribunal were strong, given what appeared to be the damning evidence of an apparently plagiarised account from the internet, the finding was open to the tribunal.  I agree.  His Honour also found that there was no substance as to the assertions of illogicality and bias.  I agree.

11. Next his Honour found that it was difficult to understand the argument, in a ground asserted by the applicant, that there was procedural unfairness and a failure to investigate his genuine claims. 

12. His Honour said that the applicant’s affidavit before him asserted procedural unfairness in relation to the tribunal’s consideration of the issue of the plagiarised information and that he had not been given an opportunity to contest that information at any time before the tribunal made its decision. As his Honour said, that assertion was false. His Honour pointed in the court book before him to a letter from the tribunal to the applicant dated 14 February 2007 pursuant to s 424A of the Act. He noted that the applicant’s response of 28 February 2007, as I have recited, accused the delegate of having been biased and failing to weigh properly his claims. The applicant was afforded natural justice. Indeed, the requirements of s 424A were complied with in relation to the internet plagiarism question. His Honour held that the tribunal was entitled to find as it did in relation to that question. There was no arguable jurisdictional error either in that respect or in any other respect relied upon before his Honour. I reject this argument on the basis that his Honour was correct in his finding for the reasons he gave.

13. The third ground of review before his Honour asserts that the tribunal had applied a wrong test, but the applicant was unable to articulate anything before his Honour to indicate how.  Accordingly, his Honour correctly, in my view, rejected this argument as disclosing no jurisdictional error.

14. The fourth ground in the amended application again asserted that the tribunal had applied a wrong test in requiring independent evidence of a fact before it would accept a claim made by the applicant and that this placed too high an onus of proof on him.  He claimed he was entitled to the benefit of the doubt.  The applicant conceded before his Honour and before me that he was not able to provide the tribunal with evidence to support his claim that he was a member of the Dalit caste.  It was open in those circumstances for the tribunal to find as it did.  No arguable jurisdictional error arises.  There is no basis to suggest that his Honour was wrong to have found the applicant had failed to demonstrate an arguable case of jurisdictional error.  I am satisfied that he was correct to have done so.

15. The notice of appeal before me argued that his Honour erred and failed to find error of law, jurisdictional error, procedural fairness, and relied on s 39B of the Judiciary Act 1903 (Cth). It argued that his Honour had dismissed the claim for a constitutional writ relief without considering unspecified legal and factual errors in the decision of the tribunal. For the reasons I have given I am satisfied that there is no arguable basis upon which any of those assertions could be maintained.

16. Next, the notice of appeal contended that his Honour had made a legal, factual and jurisdictional error in not applying the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. There is no substance in that contention.

17. The notice of appeal also asserted that his Honour failed to have regard to the fact that the tribunal’s decision was allegedly unjust and ought to have taken account of the full gravity of the applicant’s circumstances in consequence of his claim.  This is baseless and I reject it.

18. The sixth ground of appeal was that the tribunal emphasised an irrelevant question and ignored the applicant’s Dalit background.  For the reasons I have given there is no substance in this contention.

19. The seventh ground of appeal was that the applicant’s case was identical to that of Muin v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 and that somehow the tribunal had read some unidentified information in some other unspecified documents which it had not drawn to his attention. The applicant was unable to explain what possible documents these might have been or what the tribunal did. There is no evidence that there were such documents. I reject the claim as having no substance.

20. Last, the applicant claimed that his Honour did not consider the amended application because he dismissed it and the applicant was not represented by a legal practitioner.  I am of opinion that his Honour gave full and proper consideration to the applicant’s case and dealt with it entirely properly.  There is nothing in the material or the written submissions filed by the applicant which demonstrates that there is any sufficient doubt as to the correctness of his Honour’s decision which would warrant the grant of leave to appeal had that been applied for, or that any injustice, let alone substantial injustice, would result from the refusal of leave to appeal.  However, I have dealt with the matter on its merits.  I am of opinion that the appeal is baseless.  In my opinion it is incompetent. 

21. I order that the appeal be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        1 November 2007

The appellant appeared in person:
Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	25 October 2007
Date of Judgment:	25 October 2007