SZMSM v Minister for Immigration and Citizenship
[2009] FCA 587
•19 May 2009
FEDERAL COURT OF AUSTRALIA
SZMSM v Minister for Immigration and Citizenship [2009] FCA 587
SZMSM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 169 of 2009
NORTH J
19 MAY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 169 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMSM
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
19 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal fixed at $3,600.
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 169 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMSM
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
19 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the Court is an appeal from a judgment of the Federal Magistrates Court, delivered on 13 February 2009: SZMSM v Minister for Immigration & Anor [2009] FMCA 84. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal), which was signed on 17 July 2008 and which affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a protection visa. The claims of the appellant are clearly summarised by the Federal Magistrate, as is the proceeding before the Tribunal and the decision of the Tribunal. I rely on that description of those matters and consequently will summarise, very briefly, the nature of the appellant’s case.
The appellant claimed to be a citizen of India of the Muslim faith and to be a supporter of the Congress Party. He said he was targeted by those supporting the opposition Bharatiya Janata Party (the BJP). He claimed that he was asked to join the BJP and when he refused he was threatened and attacked. He claimed that he reported the matter to the police but they took no action because he was a Muslim. He claimed a fear of persecution if he were to return to India on the grounds of his religion and his political opinion.
THE TRIBUNAL’S DECISION
In its findings and reasons the Tribunal considered each of the factual elements of the appellant’s claim and rejected each on the basis that the Tribunal found that the appellant was not a witness of truth.
In relation to his claim to have been a member of the Congress Party, the Tribunal found that he had no real knowledge about the party and made a positive finding that he was not a member of the party.
The Tribunal then rejected his claim that he had been asked to join the BJP and when he refused, was threatened. The Tribunal observed that the appellant had claimed in his written statement prior to the hearing that he had been subjected to one attack but when he gave evidence to the Tribunal he said there had been two. The Tribunal rejected his explanation that he had only included the main events in his written statement and therefore did not mention both attacks. On this issue, the Tribunal found that the appellant was not credible or truthful and positively found that the applicant had not been attacked on any occasion by BJP members. Because the Tribunal found the appellant not to be credible or truthful, it was not satisfied of his claim that he had lost his job because of the BJP’s intervention.
At the hearing, the appellant claimed to have been threatened at the Ganesha Hindu festival, that he then moved around and stayed in different villages and that he finally went to Singapore but returned to India almost immediately when his father became ill. The Tribunal observed that these events had not been mentioned in the appellant’s written submission. It found that the events did not happen and that the appellant had manufactured the claims in order to strengthen his claim for protection.
The Tribunal then considered the situation for the future if the appellant returned to India. It found that the appellant was not involved politically and would not participate in political activities if he were to return to India. In relation to the claim that the appellant was unable to get police help because they were Hindu and he was a Muslim, the Tribunal was not satisfied that the appellant had approached the police or that they refused help. It can thus be seen that the Tribunal comprehensively rejected the appellant as a credible witness. The appellant then applied for a review of the Tribunal’s decision to the Federal Magistrates Court.
THE FEDERAL MAGISTRATE’S JUDGMENT
The grounds of appeal before the Federal Magistrate were:
1.The Tribunal failed to appropriately deal with the applicant claims in particular the inference that the applicant claims are not genuine thus breaching section 424A.
Particular:
The Tribunal inferred that the applicant’s claims were not genuine. The Tribunal has not given the applicant an opportunity in the section 424A letter to comment on the claim raised by the applicant.
2.The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.
Each of these grounds was rejected. The appellant was self represented and as recorded by the Federal Magistrate made no meaningful submissions in support of either ground. Nonetheless, the Federal Magistrate dealt with the Tribunal’s obligations under s 424A of the Migration Act 1958 (Cth) (the Act) and held that there had been no failure to comply with the requirements of the provision. In relation to the second ground, despite the lack of any meaningful submission from the applicant, the Federal Magistrate considered whether the Tribunal had properly dealt with the claims made and the evidence in support led by the appellant and found that it had done so.
Finally, the Federal Magistrate dealt with an allegation raised in the affidavit in support of the application for judicial review, which alleged that the Tribunal exceeded its jurisdiction, or constructively failed to exercise jurisdiction, or denied procedural fairness in that the Tribunal failed to investigate the appellant’s claims within the requirements of the Act. The Federal Magistrate noted that no particulars were provided in support of these assertions but nonetheless examined the process before the Tribunal and found that the Tribunal complied with its obligations under the Act.
THE APPEAL
On 2 March 2009, the appellant filed a notice of appeal in this Court. It contained two grounds, as follows:
The Honourable FM Emmett ought to have found that the Tribunal member made the decision based on the Country information, which are dominated and censored by the government. My personal circumstance and claims have been ignored while considering my review application by Refugee Review Tribunal.
The Federal Magistrates Court erred in not finding the lack of procedural fairness in the proceeding of RRT, in that the Tribunal did not give the applicant a reasonable opportunity to respond the independent evidence in the possession of the Tribunal that a Muslim like me with political opinion will not face harm and may live without being a victim of opposition party and Hindu extremists in India.
The appellant did not file any written submissions in support of the appeal. He has some understanding of English but was assisted by an interpreter on the appeal. In relation to ground one, he explained that his complaint was that the Tribunal did not believe his evidence and secondly, it did not ask specific questions about his claims. These elements do not appear to relate to the first written ground of appeal. No submissions were made to support the proposition that the country information relied upon by the Tribunal member was unreliable. In any event, the decision of the Tribunal depended not upon an assessment of country information but upon findings made as to the credibility of the evidence given by the appellant.
In relation to the second element of the first ground, namely, that the personal circumstances and claims were ignored by the Tribunal, that seems to be another way of complaining that the Tribunal failed to accept the evidence of the appellant. The determination of the credibility of the evidence led in support of the application is a matter for the Tribunal. No jurisdictional error is suggested. In relation to the second element of the oral submission, namely, that the Tribunal did not ask any specific questions about the appellant’s claim, no evidence of the proceeding before the Tribunal has been placed before the Court. On the face of it the reasons of the Tribunal indicate that the Tribunal asked a number of specific questions in order to test the evidence of the appellant. For example at [65] of its reasons the Tribunal indicated that it asked the appellant about the Congress Party. This related to a central element of the appellant’s claim, namely, that he was an active member of the party.
In relation to the second ground of appeal, the appellant orally made a number of short points. He stated that the Tribunal did not make the right decision. He said that the Tribunal asked for evidence about his claims but he did not have documents. He said generally that the decision was not justified and that the Tribunal did not investigate his grounds properly and he needed another hearing for that to occur.
The Federal Magistrate dealt with a complaint which appears similar to the gist of what the appellant said orally and what seems to be, at least in part, included in the second written ground of appeal as follows (at [55]):
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the Applicant’s claim; accurately summarised the Applicant’s claims; invited the Applicant to attend a hearing at which the Applicant gave oral evidence; explored with the Applicant matters arising from his evidence that caused it concern; considered the Applicant’s responses; offered the Applicant a further opportunity to respond in writing; and, received from the Applicant and considered post-hearing documents in support of his claims. The Tribunal also put to the Applicant country information before it and invited the Applicant to comment upon it and again noted the Applicant’s responses. The Tribunal made findings on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached its conclusions based on findings made by it and applied the correct law in reaching those conclusions.
The appellant has not pointed to any specific error made by the Federal Magistrate in this summary of the Tribunal’s approach.
It follows from these reasons that the appellant has not made out either of the written grounds of appeal or the oral elaborations upon which he relied. Consequently, the appeal must be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 1 June 2009
Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr M Izzo Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 19 May 2009 Date of Judgment: 19 May 2009
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