SZMOR v Minister for Immigration and Citizenship
[2009] FCA 982
•17 August 2009
FEDERAL COURT OF AUSTRALIA
SZMOR v Minister for Immigration and Citizenship [2009] FCA 982
SZMOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 444 of 2009
GRAHAM J
17 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 444 of 2009
BETWEEN: SZMOR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
17 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal filed 20 May 2009 be dismissed.
2.The appellant pay the respondent Minister’s costs.
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
GENERAL DIVISION
NSD 444 of 2009
BETWEEN: SZMOR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
17 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of India. He was born in India in February 1965. At birth, he was a Dalit. When he was about two years old, his family converted to Islam, and he has been a practicing Muslim ever since. Whilst the appellant was born in Pallippadam in India, he has spent a lot of time outside of India in the United Arab Emirates. The passport which was issued to him by the Republic of India on 27 March 2006 for a period of 10 years was issued in Abu Dhabi. The appellant visited Australia on a number of occasions, entering Australia on visas issued to him in Dubai. He spent time in Australia in mid-2006 and again in mid-2007. On 5 June 2007, he was issued with a three month visitors’ visa. He travelled on that passport and entered Australia on that visa on 29 November 2007, having left Cochin in India on 28 November 2007.
On 11 January 2008, he applied for a Protection (Class XA) visa. He claimed to have a well-founded fear of persecution by reason of political opinion and religion. He contended that he feared persecution because of his support for the People’s Democratic Party. On 14 February 2008, his application for a protection visa was refused by a delegate of the Minister as his claims did not meet the criterion contained in the Refugees Convention, meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol amending that convention, meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will refer to the Convention as amended by the Protocol as ‘the Convention’.
On 7 March 2008, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister’s delegate’s decision. The Tribunal invited the appellant to attend a hearing before the Tribunal to give oral evidence and present arguments, advising him that it was unable to make a favourable decision on the information contained in his application for review alone. It would appear that the appellant attended a hearing on 29 April 2008 and that it lasted for approximately three hours.
On 11 June 2008, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa. That decision was handed down on 3 July 2008.
On 31 July 2008, the appellant applied for constitutional writ relief in the Federal Magistrates Court of Australia, the grounds relied upon being:
‘1.The Tribunal member fell into jurisdiction (sic) error in so far as it made finding that were not open on the evidence before the Tribunal.
2.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible.’
Decisions upon the grant or refusal of protection visas are made, in the first instance, by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’). Section 65 of the Act relevantly provides:
‘65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …
…
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.’
The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provides as follows:
‘36(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’
As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] (‘Applicant S154/2002’); see also, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]).
The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal, and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]-[58]).
As can be seen from the abbreviated quote from s 65 of the Act, ‘satisfaction’ is the critical issue in determining whether or not the relevant criteria have been met. Section 36(2) does not use the term ‘refugee’. However, the relevant criteria is measured against the terms of the definition in paragraph A(2) of Article 1 of the Convention.
The problem for the appellant in this case is simply that he was not believed by the Tribunal member. The application for judicial review was dismissed by the learned Federal Magistrate before whom it came, who also ordered that the applicant pay the costs of the respondent Minister, fixed in the sum of $3500.
Before this Court the Notice of Appeal has stated one ground in the following terms:
‘2.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:
Particular:
i.it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.’
Alas, the test posed by s 65(1) of the Act is not one which requires the benefit of the doubt to be given to an applicant for a protection visa. Furthermore, the Tribunal did not, in this case, entertain ‘the possibility that the applicant’s claims are plausible’.
At [50] of the Statement of Decision and Reasons of the Tribunal member, he said:
‘50.The Tribunal has serious concerns, however, about the credibility of the applicant’s evidence regarding his involvement in the PDP, and his personal circumstances and events in India which led to his departure from India and which form the basis of his protection claims.’
In the succeeding paragraphs of the ‘FINDINGS AND REASONS’ section of the Tribunal member’s Statement of Decision and Reasons, expressions were used over and over again, such as:
‘The Tribunal finds the applicant has given inconsistent and implausible evidence…’
‘The Tribunal … finds that it is highly implausible the applicant would…’
‘The Tribunal therefore has significant doubts that …’
‘The Tribunal … has serious doubts that…’
‘… the applicant gave only vague evidence …’
‘The Tribunal does not accept …’
‘The Tribunal … has serious doubts that the applicant was involved in … as he claimed’
‘The Tribunal finds there are significant inconsistencies between the evidence in the applicant’s protection visa application and the evidence given at the Tribunal hearing regarding …’
‘… the applicant’s evidence at the hearing regarding this incident was confused and inconsistent.’
‘The Tribunal … finds it is highly improbable …’
and so on.
On numerous occasions the Tribunal member recorded that he did not accept matters that had been alleged by the applicant. In the circumstances, the Tribunal, having considered all the evidence, was not satisfied that the appellant had a well-founded fear of being persecuted for reason of his political opinion or religion or any other Convention reason if he returned to India now or in the reasonably foreseeable future. It is apparent that the Tribunal did not fall into jurisdictional error and it goes without saying, as I have reminded the appellant, that it is not open to this Court to provide him with a merits review.
The appellant has failed to make good the ground contained in his Notice of Appeal. The appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 31 August 2009
The appellant appeared in person. Solicitor for the First Respondent: E Baggett of DLA Phillips Fox Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance.
Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009
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