SZMTQ v Minister for Immigration and Citizenship

[2009] FCA 1062

FEDERAL COURT OF AUSTRALIA

SZMTQ v Minister for Immigration & Citizenship [2009] FCA 1062

Migration Act 1958 (Cth) ss 424, 424A, 424B, 441A, 441C
Migration Regulations 1994 (Cth) Reg 4.35(3)

Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 cited
SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452 cited
SZMTQ v Minister for Immigration & Citizenship [2009] FMCA 29 affirmed

SZMTQ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 134 of 2009

BENNETT J
22 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 134 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMTQ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	22 SEPTEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’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 134 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMTQ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	22 SEPTEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 15 February 2008.  He lodged an application for a protection visa which was refused by a delegate of the Minister.  He applied to the Tribunal for a review of that decision, which the Tribunal affirmed.  He appealed to the Federal Magistrates Court, which dismissed his application to review the decision of the Tribunal (SZMTQ v Minister for Immigration & Citizenship [2009] FMCA 29).

2. The appellant claimed to fear persecution in India due to his political opinion.  He said that he joined the National Students Union of India in 1991 and later became an influential member of the Congress Party (CP).  He further claimed that he was a recognised local astrologer and that this, coupled with his political work, resulted in overtures from  members of the Bharatiya Janata Party (BJP) asking that he change party allegiances.  The appellant claimed that the BJP believed that he possessed a “karishma” (miraculous power) which could “change the political scenario”.  He said that if he did not join the BJP, its supporters would kill him and his family.

3. Before the Tribunal the appellant raised a further claim relating to his operation of a computer business.  He alleged that police had used his email address and internet connection to make enquiries about holders of certain mobile phone numbers and that these enquiries resulted in the arrest of several acquaintances of a Mr Singh, who himself was allegedly a “professional killer”.  The appellant claimed that he was blamed for these arrests and that Mr Singh continued to pursue him.

4. After the Tribunal issued an invitation to the appellant to attend a hearing, it sent him a letter pursuant to ss 424 and 424A of the Migration Act 1958 (Cth) (the Act). In that letter, the Tribunal invited the appellant to give his comments or to respond in writing to information set out in the letter and to provide additional information relevant to the review. The letter nominated a date 23 days after the date of the letter by which the appellant’s comments or response and additional information should be received by the Tribunal. The letter complied with the requirements of the Act and Regulations.

5. Prior to the date of that letter, the Tribunal wrote to the Secretary of the Department of Immigration and Citizenship seeking relevant documents from the Department in connection with the appellant.

6. The appellant attended the Tribunal hearing and gave evidence.

7. Following the hearing, the Tribunal sent a further letter to the appellant pursuant to s 424A of the Act. Again, that letter complied with the requirements for service pursuant to ss 424B, 441A and 441C(4) and Regulation 4.35(3) of the Act. It provided that the response should be given in writing and nominated a date more than 21 days after the date of the letter for the appellant’s response to be received by the Tribunal (seven days for presumed receipt plus 14 days as required).

   The Tribunal decision

8. The Tribunal’s reasons provide an extensive recitation of the appellant’s claims and evidence as well as the procedural history of the matter. The Tribunal’s findings and reasons are also detailed. The Tribunal summarised the claims made by the appellant to the delegate, the evidence given by the appellant to the Tribunal and the contents of the two s 424A letters (one was sent pursuant also to s 424), together with independent country information.

9. The Tribunal, in its reasons, noted a number of issues concerning the appellant’s evidence, which the Tribunal described variously as “implausible” and “inconsistent”.  Based upon the evidentiary concerns which it detailed, the Tribunal considered that the appellant had changed his evidence in response to certain questions and that this preparedness to change his evidence reflected adversely on the appellant’s credibility.  Considering the evidence as whole, the Tribunal found that the appellant was not a credible witness and that he had fabricated claims in order to support his application for a protection visa.  As a result of that finding, the Tribunal stated that it placed no weight on certain documents, including emails and pages of a Court judgment, which the appellant had submitted.  The Tribunal stated that it had not accepted his claims regarding his political profile or his involvement in astrology or that he was viewed by BJP as having a karishma which could affect political outcomes.  As to the appellant’s future, the Tribunal considered that the appellant would not be actively involved with the CP or practise astrology for the CP if he were to return to India, not through fear of persecution, but because he had not been so involved in the past.

10. The Tribunal stated at [110] that it had:

    considered the [appellant’s] claims independently and cumulatively.  In consideration of the evidence as a whole.  On the basis of the available information, the Tribunal is not satisfied that the [appellant] has suffered any Convention-related harm, or that there is a real chance of such harm occurring to him in the reasonably foreseeable future. 

    The Federal Magistrates Court

11. By an amended application for review, the appellant raised a number of grounds which, in summary, were:

    (1)Denial of procedural fairness in reaching conclusions adverse to the appellant that he was not a credible witness and fabricated claims;

    (2)Findings not open on the evidence;

    (3)Failure to give the appellant the opportunity to be heard in respect of his credibility and the finding of fabricated claims;

    (4)Failure to take into account “certain relevant considerations or ‘integers’ central to the [appellant’s] claims because the appellant was being questioned for a number of hours without a break and ‘felt stressed and intimidated’ ”;

    (5)Failure to consider that the appellant had been under “immense and intimidating pressure from BJP members”;

    (6)Failure to consider the appellant’s claim that BJP members including Mr Singh had threatened him and his family;

    (7)Failure to “determine the chances” of the appellant being persecuted should he return to India;

    (8)Failure to analyse “future harm” if he goes back to India; and

    (9)Failure to assess or carry out the “real chance” test.

12. Federal Magistrate Scarlett considered that the Tribunal’s credibility findings were open to it on the evidence, credibility being a matter for the Tribunal because it involved findings of fact. His Honour concluded that the appellant had been given an ample opportunity to be heard, citing the hearing and the two s 424A letters to which the appellant had replied. His Honour noted that the Tribunal had discussed with the appellant the material he had submitted and copies of astrological articles he had submitted. His Honour also noted that comprehensive discussion took place during the Tribunal hearing. His Honour found no breach of s 424A, no failure to provide a valid hearing under s 425 and no denial of procedural fairness.

13. His Honour noted that the appellant had provided no particulars of the alleged failure on the part of the Tribunal to take into account relevant considerations and no evidence concerning his complaints about the hearing.  His Honour noted that the Tribunal recorded a claim by the appellant to be “mentally disturbed” and that “his mind was not working properly”.

14. Federal Magistrate Scarlett concluded that there was no evidence to suggest that the appellant did not receive a fair hearing because of his inability to give evidence or make submissions about his claim.

15. His Honour also concluded that the appellant’s claims had been considered by the Tribunal and that, otherwise, the grounds of appeal sought to attempt merits review, which is not available in proceedings for judicial review.  His Honour also observed that the Tribunal clearly considered the chances that the appellant will be persecuted upon his return to India.

16. Federal Magistrate Scarlett also discussed a possible breach of s 424B(2) of the Act with respect to the letter sent to the Department requesting documents relating to the appellant’s previous application for a visa.  His Honour referred to SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452, where Buchanan J concluded that s 424B(2) does not establish an obligation on the Tribunal which could lead either to statutory breach or to jurisdictional error.

    Notice of appeal

17. The grounds of appeal in the notice of appeal are in summary:

    (1)That the Federal Magistrate failed to find that the Tribunal decision was “unjust” and did not take into account the “full gravity of circumstance and consequence of the claims”;

    (2)That the Tribunal denied the appellant procedural fairness by concluding that he was not a credible witness when such a conclusion was not open on the evidence; and

    (3)That the Tribunal failed to consider “all the materials readily available and/or accessible”.

18. The grounds of appeal are unparticularised.

    Ground 1 of the notice of appeal

19. No particulars are given; no basis for such a ground has been made out.

    Ground 2 of the notice of appeal (and paragraph 3 of the written submissions)

20. There are no particulars given of any alleged denial of procedural fairness.  To the extent that this ground raises a complaint concerning the facts as found by the Tribunal, that does not found jurisdictional error.  The Tribunal set out the appellant’s claims and evidence in detail.  It considered those claims and made a finding that it would not accept the majority of them because of its finding that the appellant lacked credibility.  The basis for that finding was clearly set out in the Tribunal’s reasons and the conclusion was open on the evidence before the Tribunal.

    Ground 3 of the notice of appeal (and paragraph 5 of the written submissions)

21. This ground is unparticularised.  The Tribunal’s reasons do not disclose any failure to consider relevant material.  To the extent that this ground suggests an obligation on the part of the Tribunal itself to conduct enquiries and obtain information, the Tribunal is under no such obligation.

    Additional grounds of appeal

22. In written submissions, the appellant raises a number of other matters.  In effect, these are additional grounds of appeal.  The Minister objects to consideration of any matters not raised before the Federal Magistrate.  In order to determine whether leave to rely upon additional grounds should be granted, it is necessary first to consider the merit of those grounds.

    Additional ground 1 (paragraph 1 of the written submissions)

23. The first additional ground is:

    The Tribunal failed to comply with s 424 of the Migration Act in inviting the appellant to give information additional to that which the Tribunal had obtained.

    Particulars

    (a)The invitation was not given in accordance with s 424(3)(a) and s 424B of the Act in that:

    i.The invitation did not specify the way in which the additional information may be given;

    ii.The invitation did not specify the period within which the information was to be given.

24. This ground can be dealt with shortly. The s 424A letters were dispatched by Registered Post in accordance with ss 424(3)(a) and 441A and complied with s 424B in each case. There was no failure to comply with the Act.

    Additional ground 2 (paragraph 2 of the written submissions)

25. The second additional ground is:

    The Tribunal failed to record its decision in accordance with s 430 of the Act.

    Particulars

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

    (b)The Tribunal however has not accepted that the applicant was actively involved in the NSUI or the CP and has not accepted that he came to attention of the AVBP or the BJP in this regard.  It did not accept that applicant was involved in political fight with BJP on campus or elsewhere, or that he was threatened with violence.  It also did not accept that applicant was elected college secretary of the NSUI or the CP at any time, but did not give real reasons for the findings.

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

26. This ground can also be dealt with shortly.  Particulars (a) and (c) are not properly particularised.  The Tribunal did make findings as to the extent or nature of the persecution claimed to have been suffered by the appellant.  Particular (b) is an attempt to seek merits review.  The findings made by the Tribunal were open to it on the evidence.  There is no basis to conclude that the Tribunal failed to record material facts. 

27. There is no basis for the allegation that the Tribunal failed to record its decision in accordance with s 430 of the Act.

    Additional ground 3 (paragraph 4 of the written submissions)

28. The appellant contends that the Tribunal did not give him independent country information in its possession prior to the hearing, which information was used for the purposes of the Tribunal’s decision.

29. The Tribunal is under no obligation to give such information to the appellant by reason of s 424A(3)(a).

    Additional ground 4 (paragraph 5 of the written submissions)

30. The appellant submits that the Tribunal decision was effected by actual bias. No particulars of this ground are given.  No such basis is apparent.  This ground has not been made out.

    Additional ground 5 (final paragraph of written submissions)

31. The appellant submits that the Tribunal failed to analyse properly the future harm that the appellant may face if he has to go back to India and thereby failed to carry out the ‘real chance’ test.  As stated above at [9] and [10], the Tribunal did conduct such an analysis in its reasons.

    The hearing

32. The appellant appeared in person at the hearing, assisted by an interpreter.  He provided little additional assistance with respect to particularisation of, or submissions concerning, the grounds in his notice of appeal or the additional grounds in his written submissions.

33. The appellant states that he had been depressed during the Tribunal hearing and that he told this to the Tribunal but it did not believe him.  The Tribunal specifically referred to the appellant’s complaints at the hearing about his health.  If the Tribunal did not believe the appellant, that was a matter for the Tribunal and does not establish jurisdictional error.

34. The appellant says that his English was not good at the hearing but accepts that he was assisted by an interpreter on that occasion.

35. The appellant says that the Tribunal did not consider documentation such as emails which he had supplied.  The Tribunal explained at [108] of its reasons that, based on its adverse credibility finding, it placed no weight on emails which the appellant had submitted.  That was a matter for the Tribunal.

36. Otherwise, to the extent that the appellant raises an alleged contravention of s 424 of the Act by reason of a failure to comply with s 424(2), that matter has now been resolved by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434. Section 424(2) does not limit the ability of the Tribunal to get information that it considers relevant by reason of s 424(1). In any event, even if s 424(2) applied, the request to the Department to provide information did comply with s 441A of the Act, as did the two s 424A letters sent to the appellant.

    Conclusion

37. It follows that the appellant has not established any basis for, or merit in, any of the grounds of appeal in the notice of appeal or the additional grounds sought to be relied on in the written submissions.  Leave to rely upon grounds not raised before the Federal Magistrate is refused.  The appellant has not demonstrated any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate.  The appeal should be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       22 September 2009

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr J P Knackstredt
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	26 August 2009
Date of Judgment:	22 September 2009