SZMFX v Minister for Immigration and Citizenship

[2008] FCA 1835

FEDERAL COURT OF AUSTRALIA

SZMFX v Minister for Immigration and Citizenship [2008] FCA 1835

Migration Act 1958 (Cth), ss 5(1), 36

Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967

SZMFX v Minister for Immigration and Anor [2008] FMCA 1150 affirmed

SZMFX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1370 of 2008

GRAY J
17 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1370 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMFX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	17 NOVEMBER 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, fixed at $2,600.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1370 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMFX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	17 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal is from a judgment of the Federal Magistrates Court, published as SZMFX v Minister for Immigration and Anor [2008] FMCA 1150. The judgment was given on 13 August 2008. The learned federal magistrate dismissed an application by which the appellant sought to set aside a decision of the Refugee Review Tribunal (“the Tribunal”), dated 28 March 2008 and handed down or sent on 17 April 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), to refuse to grant the appellant a protection visa.

2. The appellant is a citizen of Armenia.  He arrived in Australia on 6 September 2006.  On 24 August 2007, he applied to the Department of Immigration and Citizenship for a protection visa.  On 5 November 2007, the Minister’s delegate notified the appellant of the decision to refuse a protection visa.

3. By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to call these two instruments taken together, the “Convention”.  For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country

4. The appellant claimed to have a well-founded fear of persecution, if he were to return to Armenia, on grounds that may have embraced race, religion, membership of a particular social group or political opinion.  His claim is based on the fact that his mother is an Azeri woman, although she was born in Armenia and not in Azerbaijan.  The appellant provided a substantial amount of information about his experiences.  He claimed that he had been subjected to persecution because of his mother’s ethnic origins, because of his Christianity, and because he communicated with the police, and wrote to the President and to the news media, to complain about the treatment of his mother and himself.

5. The Tribunal did not accept the appellant’s account.  It drew attention to a significant number of substantial inconsistencies in various versions of that account given by the appellant at different stages.  The Tribunal also found that it could not accept some aspects of the appellant’s account.  The Tribunal was also troubled by the fact that the appellant had waited almost 12 months after his arrival in Australia before applying for a protection visa.  The Tribunal provided opportunities to the appellant to explain the inconsistencies but was not satisfied with his explanations.  Similarly, the Tribunal was not satisfied with the appellant’s explanation of the delay in applying for a protection visa.

6. The Tribunal summed up its findings in its reasons for decision as follows.

   For all the above reasons, the Tribunal did not find the applicant to be a truthful and credible witness.  The totality of the applicant’s evidence shows a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purpose.  The Tribunal, therefore, does not accept that the applicant had made repeated complaints to the authorities in relation to the police handling of the assault on his mother.  The Tribunal does not accept that the applicant was beaten, threatened and harassed repeatedly by the authorities in Echmiadzin for the reasons he has provided.  The Tribunal does not accept that the authorities were ever interested in him or that they would show an interest in him if he were to return to Armenia.  At the hearing the applicant stated that he did not know who had tried to burn down his front door or why.  Having regard to the fundamental lack of credibility in the applicant’s claims, the Tribunal does not accept that the attempt to burn down the applicant’s front door was Convention related.  The Tribunal does not accept that he was threatened, harassed or harmed by his neighbours or anyone else for the reasons he has provided.  The Tribunal does not accept that his mother’s ethnicity stigmatised him or would put him at a real risk of harm in Armenia for the reason of his ethnicity, imputed political opinion or membership of a particular social group, including his family, or any other Convention reason.  The Tribunal does not accept that the applicant has been harmed in the past or that there is a real chance that he will be harmed for a Convention reason if he were to return to Armenia now or in the reasonably foreseeable future.  The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Armenia.

7. In his application to the Federal Magistrates Court, the appellant raised two grounds.  The first was that the Tribunal wrongly applied a test of “persecution feared”.  The second was that the Tribunal misapplied a test of “reasonable fear”.  The federal magistrate rejected both of these grounds.

8. In his reasons for judgment at [8], the federal magistrate held that the Tribunal identified accurately the tests that were to be applied and did apply those tests.  His Honour also found that the Tribunal put the appellant on notice of its concerns about his credibility.  At [9], his Honour found that there was nothing in the record of the Tribunal proceedings to indicate bias and that there was no doubt that the Tribunal engaged in an active intellectual process in considering the appellant’s claims.  As his Honour pointed out in [7] and [10], the appellant’s concerns were related to the dissatisfaction with the outcome, rather than to any issue with which the Federal Magistrates Court could deal in the exercise of its powers.  At [11], his Honour found that the Tribunal decision was free from jurisdictional error.

9. In his notice of appeal to this Court, the appellant did not refer to the two grounds raised in the Federal Magistrates Court.  The notice of appeal raises two grounds.  The first is that the federal magistrate erred in law in not finding lack of procedural fairness in the proceedings of the Tribunal, in that the Tribunal placed all weight on the credibility issue.  The second ground is that the federal magistrate was not able to reach the right decision because the Tribunal simply dismissed all the appellant’s claims cumulatively and did not look at other Convention definitions applicable to the appellant’s case.

10. Because these grounds appear to raise points not dealt with by the Federal Magistrates Court, they could only be raised if this Court gave leave to the appellant to rely on those new grounds.  The appellant did not apply for leave.  If he were to apply for leave, leave would only be granted if it appeared that the new grounds had merit.

11. As to the first ground, it is clear that there was no denial of procedural fairness in the Tribunal basing its decision on the appellant’s credit.  It is the Tribunal, and not the Federal Magistrates Court or this Court, that has the function of finding the facts.  Part of the fact-finding function is an assessment of the credit of any person giving evidence.  The Tribunal’s finding adverse to the appellant on the question of credit was based on the inconsistencies it identified in the different versions of his account of his experiences, on its inability to accept aspects of his account, and on the delay in his application for a protection visa.  In the absence of satisfactory explanations for these inconsistencies and for the delay, coupled with the Tribunal’s inability to believe aspects of the appellant’s account, these were proper bases for a finding as to credit.  They are not indicative of any denial of procedural fairness.

12. The second ground in the notice of appeal is difficult to construe.  It is unclear what the appellant meant by a dismissal of all his claims cumulatively.  The Tribunal did look at the relevant Convention grounds.  More importantly, however, the Tribunal found that the appellant did not have a well-founded fear of persecution if he were to return to Armenia.  It was therefore unnecessary for the Tribunal to determine whether, if the appellant had such a fear, it would be related to any Convention ground.  The crucial finding of fact that the appellant did not have a well-founded fear of persecution cannot be overturned by this Court.

13. Accordingly, if the appellant had sought leave to rely on the grounds in his notice of appeal, such leave would have been refused because the grounds have no merit.  There was no attempt to argue that the federal magistrate was in error in dealing with either of the grounds advanced in the Federal Magistrates Court.  I have examined the reasons for judgment and am not able to identify any error in them.  I have also examined the Tribunal’s reasons for decision and am not able to identify anything that would amount to jurisdictional error on the part of the Tribunal.

14. For these reasons, the appeal must be dismissed.

15. Counsel for the Minister has sought an order for costs.  The appellant has not advanced any reason why the usual principle, that costs follow the event, should not be followed, and I am unable to discern any such reason.  Counsel for the Minister has also sought that I fix the costs to be paid in the amount of $2,600.  In making that application, the first respondent has relied on an affidavit of a solicitor, subject to an adjustment downward of the estimate of fees for counsel.  On the basis of that affidavit, and on the basis of my experience in other matters, I regard the amount sought as reasonable. 

16. The Court orders that:

    1.        The appeal be dismissed.

    2.        The appellant pay the first respondent’s costs of the appeal, fixed at $2,600. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:        2 December 2008

The appellant appeared in person
Counsel for the first respondent:	Mr P Reynolds
The second respondent entered a submitting appearance, save as to costs
Solicitor for the respondents:	Clayton Utz

Date of Hearing:	17 November 2008
Date of Judgment:	17 November 2008