SZLTW v Minister for Immigration and Citizenship

[2008] FCA 1185

FEDERAL COURT OF AUSTRALIA

SZLTW v Minister for Immigration and Citizenship [2008] FCA 1185

SZLTW and SZLTX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 728 OF 2008

STONE J

4 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 728 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTW
First Appellant

SZLTX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	4 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent has leave to file in Court the affidavit of Alissa Maree Crittenden sworn 4 August 2008.

2.The appeal be dismissed.

3.The appellants pay the first respondent’s costs of the appeal fixed in the amount of $2600.

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 728 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTW
First Appellant

SZLTX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	4 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Federal Magistrate Emmett on 2 May 2008; SZLTW v Minister for Immigration and Citizenship [2008] FMCA 565. Her Honour dismissed the appellants’ application for judicial review of a decision of the Refugee Review Tribunal dated 30 October 2007 and handed down on 22 November 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.

2. The appellants are a husband and wife, citizens of India, who arrived in Australia on 18 September 2006.  In his application for a protection visa the appellant husband claimed to be of Christian faith and a member of the “Democratic Indira Congress” (DIC).  The appellants claimed to fear persecution by the Communist Party of India (Marxist) (CPIM) and the Bhartiya Janata Party (BJP) because of their political opinions, and by the Rashtriya Swawyamsevak Sangh (RSS), a Hindu-affiliated organisation, because of their religious beliefs.  

3. The appellant husband claimed that he had been involved in several clashes with Communist-aligned students whilst a member of the Kerala Student Union, including one in which a person who is now a member of the Kerala State Legislative Assembly was severely injured.  The appellant husband claimed that he was blamed for this incident.  He was allegedly hospitalised for three months in 1990 after an attack by CPIM members, and again in August 1996.  According to the appellants, they were attacked by men aligned with the Legislative Assembly member in 2000, resulting in the appellant wife suffering serious injuries.

4. The appellants also stated that they had been attacked by the RSS on a further two occasions in 2004 and 2006 because they had been involved in converting Hindus to Christianity.  They claimed that police inquiries in relation to these incidents were “pending”.

5. The Tribunal found that the appellants were not credible witnesses, and in particular, that the appellant husband, on whose claims the appellant wife relied, adapted his story to fit any inconsistencies identified by the Tribunal.  The Tribunal found that there were a number of inconsistencies and contradictions between the statement provided by the appellant husband in his visa application and the further evidence given by him to the Tribunal at the hearing. These included differing accounts of the date of attacks, the severity of injuries, the identity of injured parties, where the attacks had occurred, and why they had taken place.  These inconsistencies were not cured by the additional information provided by the appellants in response to the Tribunal’s letters sent pursuant to s 424A on 30 March 2007 and 4 May 2007.  The Tribunal concluded that the inconsistencies were of such a magnitude that they indicated that the incidents alleged by the appellant husband had not occurred.

6. As such, the Tribunal did not accept that the appellants held a well-founded fear of Convention-related persecution in India and affirmed the decision of the delegate to refuse the appellants a protection visa.

7. Before the Federal Magistrate, the appellants submitted an application containing numerous grounds of review, several of which were incoherent. The first ground alleged that the Tribunal failed to comply with s 91R(2) of the Migration Act1958 (Cth) and failed to consider the issue of relocation. In this regard, the Federal Magistrate found that the Tribunal had correctly applied s 91R(2). Whether or not the alleged harm was “serious harm” was not part of the Tribunal’s reasoning, as it had rejected the claims on the basis of an adverse credibility finding. Her Honour held that in circumstances where the Tribunal has concluded that the appellants did not hold a well-founded fear of persecution, it is unnecessary for the Tribunal to consider whether it was reasonable to expect the appellants to relocate within India. Otherwise, her Honour concluded that this ground was nothing more than an attempt to seek merits review.

8. The second ground of review was that the Tribunal failed to consider additional country information and failed to “have a fresh look”. In relation to this ground, her Honour found that a fair reading of the Tribunal’s decision did not suggest that there was any use of independent country information that formed part of the reasoning of the Tribunal; nor was there anything to suggest bias. 

9. The remaining grounds were that the Tribunal applied an incorrect standard of proof to the appellants’ claims; ignored certain integers of the appellants’ claims; did not consider the “immense pressure” to which the appellant husband had been subjected in India, and the claim that he was attacked; and failed to apply correctly the definition of “refugee” in Article 1A(2) of the Refugees Convention.  Her Honour did not accept that any of these grounds were made out, concluding that a fair reading of the Tribunal decision did not support the allegation that the Tribunal had applied an incorrect standard of proof or failed to consider all integers of the appellants’ claims.  The Tribunal had carefully considered each of the appellant husband’s claims in relation to the pressure to which he was subjected from the CPIM, BJP and RSS, and applied the correct law to the facts as it found them.

10. The Federal Magistrate also addressed further grounds of review contended for by the appellants in a document handed up at the hearing in the Federal Magistrates Court.  In summary, her Honour found that the Tribunal was entitled:

    (a)not to afford any weight to a newspaper report translated by the appellant husband because of its adverse assessment of the appellants’ credibility;

    (b)to rely on inconsistencies in the appellant husband’s evidence;

    (c)to have regard to the lack of corroborative evidence relating to an alleged attack in 2004; and

    (d)to exercise its discretion not to give the appellants an extension of time to obtain further information.

11. The notice of appeal filed in this Court alleged that the Federal Magistrate had erred in that her Honour had:

    1.failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth);

    2.dismissed the appellants’ case without considering the legal and factual errors in the Tribunal decision;

    3.made a “legal, factual and jurisdictional error” in not applying the principles laid down in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437;

    4.failed to take into account the fact that the Tribunal decision was unjust and failed to take into account the full gravity of the appellants’ claims; and

    5.failed to find that the Tribunal had emphasised irrelevant questions, had failed to consider the appellant husband’s Democratic Indian Congress membership, had relied in part on irrelevant material, and had made mistaken or erroneous findings.

12. I accept the first respondent’s submission that the first two grounds in the appellants’ notice of appeal are so general as to be meaningless. In relation to the third ground, being the complaint regarding Randhawa, I am satisfied that the approach of the Federal Magistrate, set out at [7] above, was correct. Where the Tribunal finds there is no well-founded fear of persecution, no question of relocation need arise. Furthermore, I accept the first respondent’s submission in relation to the fourth ground of appeal that:

    Taking the complaint on its face, there is nothing to suggest that the Tribunal failed to consider the gravity of the appellants’ claimed circumstances; it is just that the Tribunal did not accept that those claimed circumstances were true.

    Without particulars, this ground is in my view no more than a complaint impermissibly directed to the outcome of the Tribunal’s decision. 

13. In respect of the fifth ground of appeal, it appears that the appellant husband’s claim to be a member of the Democratic Indira Congress was in fact recorded.  I accept the first respondent’s submission that:

    … if the appellants’ complaint is that the first appellant’s political background was ignored because there was no specific findings made as to his DIC membership, the answer is that there was no requirement to make such findings, as they were subsumed in the Tribunal’s greater finding of generality, namely that no serious harm to the first appellant had occurred or was reasonably foreseeable. In such a case, no jurisdictional error arises: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641.

14. In a document entitled “Applicant’s Written Submission” filed with the Court on 28 July 2008, the appellants sought to raise the following further grounds of review:

    1.The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

    a.it failed to address the residual question as to how it should hold in the event that its finding that the appellant was not at risk of persecution was wrong; and

    b.it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here, and the Court below failed to so find.  

    2.The second respondent in making its determination failed to record its decision in accordance with Section 430 of the Migration Act. Particular:

    a.The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.

    b.The Tribunal however found that there is no plausible evidence before it that the first applicant has suffered persecution in his country but did not give real reasons for the finding.

    c.The Tribunal failed to record the material facts for the reasons referred to above.

    3.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the first applicant was not a credible witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

    4.I have given adequate evidence to the Tribunal that I was attacked several occasions and my family members were also attacked, harassed and intimidated by CPIM, BJP and RSS because of membership with Democratic Indira Congress that Tribunal fail to consider my genuine claims.

    5.The Tribunal has failed to investigate my claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 30 October 2007 was effected by actual bias constituting judicial error.

15. The appellants submitted that, as a result of these errors, the Tribunal failed to properly analyse the harm that they might face if returned to India and in so doing made “a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim”.

16. Of these grounds only that of bias (ground five) was raised before the Federal Magistrate.  Accordingly, leave is required to raise those matters on appeal.  I do not propose to grant that leave because, for reasons given below, these new grounds have no merit, and therefore it would not be in the interests of justice to allow them to be raised at the appeal.

17. At the hearing of the appeal the appellant husband’s submissions did not provide any support for these claims.  The appellant husband raised issues that went solely to the merits of the Tribunal’s decision which, as I explained, is an issue beyond the jurisdiction of this Court.  He was not able to provide the Court with any assistance.  In the circumstances I make only limited comments in relation to the proposed new grounds:

    (a)where the Tribunal has no real doubt as to its findings it is not obliged to consider what would be the position if its conclusion that the appellants were not at risk of persecution was wrong; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 56 ALD 43 at 63;

    (b)the Tribunal is obliged to give an applicant the benefit of the doubt but it is not required to accept uncritically the claims made by an applicant;

    (c)the Tribunal was not required to explore the nature of the alleged persecution because it did not accept the appellants' account of their experiences. In any event, as the first respondent pointed out in written submissions, a failure to comply with s 430 of the Migration Act would not give rise to a jurisdictional error; Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424;

    (d)the appellant husband was not denied procedural fairness by the Tribunal making an adverse credibility finding against him.  In this regard I accept the submissions made by the first respondent:

    The obligations in this regard are prescribed by s 425 of the Act.  The first appellant was on notice that his credibility was in issue.  The delegate of the Minister did not accept that the first appellant had a fear of persecution … The inconsistencies in the first appellant's evidence were discussed with him at the Tribunal hearing … The Tribunal wrote to the first appellant on 30 March 2007 with concerns about the first appellant's truthfulness …

    (e)I reject the allegation of bias for the reasons given by the Federal Magistrate.  I also reject the claim made in paragraph 4 of the new grounds which the appellants attempted to raise.  It is a clear invitation to this Court to review the Tribunal's decision on its merits.

18. The Federal Magistrate’s detailed reasons show that her Honour carefully and comprehensively reviewed the Tribunal’s decision.  In my opinion, the decision of the Federal Magistrate was correct for the reasons her Honour gave.  Accordingly, the appeal should be dismissed with costs.  

19. The first respondent has sought an order that the amount of costs should be fixed in the sum of $2600 and has supported this application by affidavit evidence.  On the basis of this evidence I am satisfied that the amount sought is, in all the circumstances reasonable, and shall so order.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             11 August 2008

The Appellants appeared in person.
Counsel for the Respondents:	V McWilliam
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	4 August 2008
Date of Judgment:	4 August 2008