SZMVE v Minister for Immigration and Citizenship

[2009] FCA 691

FEDERAL COURT OF AUSTRALIA

SZMVE v Minister for Immigration & Citizenship [2009] FCA 691

SZMVE and SZMVF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 241 of 2009

EDMONDS J
26 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 241 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMVE
First appellant

SZMVF
Second appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	26 JUNE 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 241 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMVE
First appellant

SZMVF
Second appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	26 JUNE 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the Federal Magistrates Court (Emmett FM) (SZMVE v Minister for Immigration & Anor [2009] FMCA 173) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’), not to grant the appellants Protection (Class XA) visas.

   BACKGROUND

2. The appellants are citizens of India.  They arrived in Australia on 22 February 2008.  The first appellant lodged an application for a protection visa on 3 April 2008.  The second appellant, who is the first appellant’s husband, applied for protection as a member of the first appellant’s family unit on 15 April 2008.

3. The Minister’s delegate refused to grant the appellants protection visas on 19 May 2008.  The appellants applied to the Tribunal for review of the delegate’s decision on 22 May 2008 and, on 25 September 2008, the Tribunal handed down its decision, affirming the delegate’s decision.

   CLAIMS AND FINDINGS

   Claims

4. The first appellant’s claims are set out in her Honour’s reasons for judgment at [15].

5. Broadly, the first appellant claimed to fear persecution from members of the Muslim community in the state of Tamil Nadu.  The first appellant claimed that her family converted to Islam from Hinduism when she was aged 10.

6. The first appellant claimed that, much later, she fell in love, and subsequently eloped, with a Hindu man, marrying him in a traditional Hindu ceremony.  She claimed that she did not return to her village because of threats from her family and the Muslim community.

7. The first appellant claimed that she and her husband lived in Bahrain for five years until a Muslim man from her village reported them to religious authorities, whereupon her husband’s employer terminated his employment.  The appellants then left Bahrain.  Upon their arrival at Chennai airport, the first appellant claimed that an unknown person tried to kidnap her but she escaped.

   Findings

8. The Tribunal’s findings and reasons are also set out in her Honour’s reasons for judgment at [22] – [27].

9. The Tribunal found that there were a number of ‘major inconsistencies’ between the first appellant’s written statement and her evidence at the hearing and that the first appellant ‘did not initially repeat significant details of her claim at hearing’ (at [54] of the Tribunal’s reasons).  In particular, the Tribunal:

   (a)Was not satisfied that the first appellant ever converted to Islam because of the ‘changing nature’ of the first appellant’s evidence on this subject (at [55]);

   (b)concluded that the first appellant was not a witness of truth and was not married to a Muslim as a child (at [56]).  This finding is based on the fact that the first appellant did not repeat at the hearing her claims to have been married to a Muslim as a child and to have been targeted by fundamentalist groups for eloping without performing the ‘Talak’ (Islamic ritual of divorce);

   (c)found that the first appellant’s evidence at the hearing that her husband was on leave for six months was inconsistent with her claim that his employment was terminated.  The Tribunal again concluded that the first appellant was not a witness of truth (at [57]);

   (d)concluded that, as she did not repeat the claimed incident at Chennai airport unprompted at the hearing, the first appellant was not telling the truth (at [58]).

10. The Tribunal found that the first appellant was not telling the truth about her conversion ‘from [Hinduism] to Islam and then to Hinduism’.  The Tribunal therefore rejected the first appellant’s claim to have suffered harm in the past (at [59]).

11. The Tribunal accepted that the first appellant’s parents may have converted to Islam, but did not accept that it follows that she has also been perceived to have converted (at [59]).

12. Even if the Tribunal accepted that there may be a perception that she has converted from Hinduism to Islam and then to Hinduism, the Tribunal did not accept that she has suffered any harm in the past or that there was a real chance of serious harm in the future.  This is, in part, because of the make-up of the population in Tamil Nadu and the fact that the current leadership is not religiously based (at [59]).  The Tribunal did not accept that the first appellant had done anything in the past that could be seen as a challenge to Islam, or that she will so act in the future (at [59]).

    IN THE FEDERAL MAGISTRATES COURT

13. In substance, five grounds of review were advanced in the Federal Magistrates Court – two were set out in the application filed on 9 October 2008 and three were set out in the first appellant’s affidavit also filed on 9 October 2008.

14. These grounds are set out in her Honour’s reasons for judgment at [32] – [33]).

15. The first ground alleged simply that the Tribunal’s decision was ‘affected by jurisdictional error’.  Her Honour observed that this is a ‘bare assertion’ and ‘is not supported by particulars’ (at [35]).  Her Honour considered that the ground simply invited impermissible merits review and accordingly rejected ground 1 (at [36] – [37]).

16. The second ground alleged that the Tribunal failed to complete the exercise of its jurisdiction because ‘it did not address the totality of the [first appellant’s] claims’.  Her Honour observed that the Tribunal’s decision makes clear that the Tribunal considered and explored the first appellant’s claims, both at the hearing and in writing (at [41]).  Her Honour rejected, as contrary to the evidence, a complaint that the Tribunal did not give the first appellant an opportunity to provide more detailed information (at [43] – [44]).

17. In her affidavit, the first appellant complained that the Tribunal’s decision was ‘not logical and misapplied so that the factual result was perverse and the decision was unreasonable’.  Her Honour again observed that the complaint was not accompanied by particulars (at [46]).  Her Honour dismissed this ground, holding that:

    (a)Illogicality of itself does not establish jurisdictional error;

    (b)the complaint as to reasonableness was in substance a disagreement with the Tribunal’s findings and invited merits review;

    (c)the complaint as to perversity was not supported by the Tribunal’s reasons, which were open to it on the evidence and material before it (at [46] – [49]).

18. The second paragraph of the first appellant’s affidavit asserts that the first appellant was denied an opportunity to explain fully why she believed that ‘the harm arose as a result of selective systematic harassment and my imputed political and trade union activities’.  Her Honour held that such a claim was not squarely raised by the first appellant and did not clearly arise on the evidence and material before the Tribunal (at [50] – [51]).

19. The third, and final, complaint made in the first appellant’s affidavit was that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) (‘the Act’) or complete its review under s 414. Her Honour observed that the allegation was not particularised. Without more, her Honour held that the complaint did not identify any error (at [52] – [54]).

    THE APPEAL

20. The notice of appeal contains, in substance, four grounds, as follows:

    ·The Tribunal ought to have found that the appellants were refugees and the Tribunal erred in not giving the first appellant the benefit of the doubt in circumstances where the Tribunal ‘entertained the possibility’ that the first appellant’s claims were plausible (Ground 1).

    ·The Tribunal failed to investigate the first appellant’s claims and, therefore, the Tribunal’s decision was affected by ‘actual bias’ (Ground 2).

    ·The Federal Magistrate failed to consider that the Tribunal’s decision was ‘unjust’ and was made without ‘taking into account the full gravity’ of the first appellant’s circumstances and the consequences of her claims (Ground 3).

    ·The Tribunal applied the wrong test by imposing a ‘high ... onus of proof on the first appellant and by failing to consider the claims as a whole (Ground 4).

21. In written submissions filed on 12 May 2009, the first appellant advanced two additional grounds, as follows:

    ·The Tribunal’s finding that the first appellant was not a credible witness was made in breach of procedural fairness as that conclusion was not obviously open on the material and the first appellant was not given an opportunity to be heard on that matter (para 3).

    ·The Tribunal failed to consider an integer of the first appellant’s claims, namely, whether a converted Hindu was at risk of harm from radical Muslims and not able to access effective protection (para 4).

22. The Minister submitted that with one possible exception, none of the grounds set out in the notice of appeal and the appellant’s written submissions were raised below.  For that reason, leave to argue those grounds should not be granted as none of the grounds has merit: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48] (Kiefel, Weinberg and Stone JJ). The possible exception may be Ground 3, which appears loosely to correspond with Ground 2 as advanced before her Honour.

23. The Minister made the following brief submissions with respect to the merits of the grounds sought to be advanced.

24. Ground 1 clearly seeks, impermissibly, to cavil with the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

25. Ground 2 establishes no error.  It is well-established that the Tribunal does not have an obligation to conduct its own investigation or to make particular enquiries in order to make an applicant’s case: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. Accordingly, its failure to do so cannot establish ‘actual bias’. In any event, there is simply no evidence at all to support any allegation of bias, actual or apprehended.

26. As noted at [22] above, Ground 3 appears loosely to correspond with Ground 2 as advanced below. To the extent that the appellants seek to maintain the same allegation, the Minister submitted that her Honour was correct to dismiss that ground for the reasons given by her Honour (at [39] – [44]). To the extent that the appellants make a different allegation, again, that allegation does not identify any relevant legal error and again invites impermissible merits review.

27. Ground 4 is in a standard form not unfamiliar in proceedings of this nature.  It does not identify with any particularity any meaningful legal error referable to the Tribunal’s decision in this case.  The Minister’s submitted it cannot be sustained.

28. Paragraph 3 is without merit.  As the learned Federal Magistrate observed (at [41]), the Tribunal ‘put to the Applicant both at the hearing and in writing the concerns it had about her claims and considered her responses’.  The Tribunal did not deny the appellants procedural fairness before reaching its conclusions as to credibility adverse to the first appellant.

29. Paragraph 4 does not disclose any error.  The Tribunal considered squarely the possibility of future harm to the first appellant as a result of any perception that she had converted to and from Islam (at [59]).  The Minister submitted that there was no error in the Tribunal’s approach in this regard.

30. For these reasons, the Minister submitted that the grounds sought to be advanced by the appellants are without merit and that leave to rely upon them should accordingly be refused.

31. I agree with the Minister’s submissions.

    CONCLUSION AND ORDERS

32. There is no discernible error on the part of the learned Federal Magistrate, nor is there any discernible error in the reasons of the Tribunal. The Tribunal’s decision is accordingly a privative clause decision within the meaning of s 474(1) of the Act. The appeal must be dismissed with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        26 June 2009

Counsel for the Appellants:	The first appellant appeared in person
Counsel for the Respondents:	Mr HPT Bevan

Date of Hearing:	29 May 2009
Date of Judgment:	26 June 2009