SZMZH v Minister for Immigration and Citizenship

[2009] FCA 905

FEDERAL COURT OF AUSTRALIA

SZMZH v Minister for Immigration and Citizenship [2009] FCA 905

SZMZH v Minister for Immigration and Citizenship [2009] FMCA 445 affirmed
Applicant A165of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 cited
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; (2004) 78 ALJR 92 followed
Prasad v Ministerfor Immigration and Ethnic Affairs (1985) 6 FCR 155 followed

SZMZH and SZMZI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 477 of 2009

FOSTER J
17 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 477 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZH
First Appellant

SZMZI
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	17 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent have leave to file in Court and to read and rely upon the affidavit of Bernadette Marie Rayment sworn on 17 August 2009.

2.The appeal be dismissed.

3.The appellants pay the first respondent’s costs of and incidental to the appeal fixed in the amount of $3,470.00. 

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 477 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZH
First Appellant

SZMZI
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	17 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate, delivered on 8 May 2009 (SZMZH v Minister for Immigration and Citizenship [2009] FMCA 445), in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), which was made on 20 October 2008 and handed down on 6 November 2008.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant protection visas to the appellants. 

2. The appellants are husband and wife and are citizens of India.  They arrived in Australia on 15 March 2008.  On 17 April 2008, they lodged an Application for Protection Visas with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the Application for Protection Visas on 30 June 2008. 

3. On 21 July 2008, the appellants applied to the Tribunal for a review of that decision.  Before the Tribunal, the first appellant, who is the wife and to whom I shall hereafter refer as the appellant, claimed to have a well-founded fear of persecution arising from her activities with the SEWA Bharat, the All India Federation of Self-Employed Women’s Associations, for whom she had undertaken voluntary work in her home town.  She claimed that she became known as an activist for women’s rights after playing a role in the introduction of minimum wages into some factories in her local area.  She claimed that she had participated in many strikes and protests against factory owners throughout 2007.  She claimed that she had been approached by workers from the ATLAS Company to lead them for the purpose of “doing something for them,” and, in response to this request, she organised meetings of local women with a view to arranging protests and strikes.  She claimed that one of the women who attended the meetings informed the ATLAS Company of their plans and that, as a result, on 31 January 2008, as she was leaving her home to attend a rally, she was approached by a hired gang (called goondas) who threatened her and assaulted her by hitting her in the face.  In her written materials, the appellant claimed that, as a result of this attack, she fainted and was hospitalised for nearly a month.  She claimed that she feared for her life and left India for Australia with the assistance of her husband who was in Taiwan at the time.  She claimed to fear harm in India from hired thugs as a result of her industrial and political activities on behalf of women workers, and also claimed that she could not relocate elsewhere in India.

4. The Tribunal had serious reservations about the appellant’s veracity and was not satisfied that the appellant was a witness of truth.  In coming to this conclusion, the Tribunal referred to significant discrepancies in the appellant’s evidence.  Examples of these were her inconsistent statements as to the year in which the January attack took place; her differing accounts of how long she had been hospitalised after the January attack; and the unsatisfactory and inconsistent accounts of the extent to which she was involved in protests against factories and, in particular, against ATLAS Company.  The Tribunal noted that the letters submitted by the appellant in support of her claims were general and vague and did not provide any significant or detailed information regarding her claims.

5. In the end, the Tribunal rejected all of the appellant’s core claims, including that she had ever been a member of SEWA Bharat, that she had become known as an activist for women’s rights, that she had participated in protests, and that she had been attacked in the manner and in the circumstances alleged by her.  The Tribunal concluded that the appellant would not experience serious harm should she return to India.  Indeed, the Tribunal found that, having regard to independent country information, the appellant would be able to avail herself of adequate state protection were she to return to India.  Furthermore, the Tribunal found that the appellant could relocate elsewhere in India in order to avoid harm, should she so desire.  The Tribunal concluded that, since the appellant’s husband’s only basis for seeking protection was to rely upon the appellant’s claims, he too was not a person to whom Australia owed protection obligations. 

6. Before the Federal Magistrate, the appellant and her husband claimed that:  

   (1)The Tribunal failed to assess the appellant’s fear of harm, failed properly to assess the appellant’s claims, was biased against the appellant and misunderstood the evidence;  and

   (2)The Tribunal fell into jurisdictional error in misunderstanding some of the appellant’s evidence and in its arbitrary rejection of other parts of it.  The appellant contended that these erroneous findings and mistaken conclusions went to the heart of the Tribunal’s exercise of its power, giving rise to an error of law and jurisdictional error.

7. The Federal Magistrate concluded that the Tribunal had not been guilty of bias against the appellant and her husband and that, even if the Tribunal had made a mistake or misunderstood the evidence before it, such an error would not in and of itself disclose a failure to bring an impartial mind to the proceedings.  The Federal Magistrate was of the view that the Tribunal had been entitled to come to the conclusions which it had reached, even if some other decision-maker dealing with the same claims and the same evidence might have taken a different and more charitable course. 

8. The Federal Magistrate found that the Tribunal had come to the views that it did in respect of the evidence given by the appellant not because of misunderstandings or a mistaken appreciation of that evidence, but, rather, because of dissatisfaction with the evidence.  In particular, there were several important inconsistencies to which the Tribunal was entitled to have regard.  His Honour also found that there was no evidence of actual bias on the part of the Tribunal.  

9. In this Court two principal grounds are sought to be agitated.  The Grounds of Appeal set out in the Notice of Appeal are as follows:

   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 appellants [sic] was a refugee within the meaning of the Act.  In such circumstances, the Tribunal erred in that:

   (i)it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here.

   The Tribunal has failed to investigate [the appellants’] claims, specially [sic] the grounds of persecution in India.  Therefore, the Tribunal’s decision dated 20 October 2008 was effected [sic] by actual bias constituting judicial error.

   It is asserted that this alleged failure to investigate betrayed actual bias against the appellant and her husband. 

10. The first Ground of Appeal is really nothing more than an attempt on the part of the appellant and her husband to seek a merits review of the Tribunal’s decision, which, of course, cannot be done in this Court.  No particular argument or contention was advanced in support of the first ground that could conceivably constitute jurisdictional error.  The first ground has not been made out. 

11. As to the second Ground of Appeal, in my judgment, in the circumstances of this case, there was no duty on the part of the Tribunal to investigate the claims being advanced by the appellant.

12. Generally speaking, the Tribunal is under no duty to inquire or to investigate claims imposed upon it (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; (2004) 78 ALJR 92). Such a duty will only arise in rare cases. Those cases will be where it is very obvious that material is readily available which is centrally relevant to the decision to be made (see Prasad v Ministerfor Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–170). As I have already said, nothing in the materials before me suggests that such a course of investigation should have been undertaken by the Tribunal in the present case.

13. As far as actual bias is concerned, I do not think that such a charge has been made out in this case.  In order for such a conclusion to be reached by this Court, there would have to be much more by way of evidence than is presently before me.  The reasons of the Tribunal, taken on their own, do not betray actual bias on the part of the Tribunal.  As the Federal Magistrate said at [16] of his reasons:

    The applicant has done no more than make the allegation.  She has provided no indication of how these difficult hurdles to establishing that allegation may be overcome.

    The “difficult hurdles” referred to by the Magistrate were those cited by him from the judgment of Lander J in Applicant A165of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877.

14. For the above reasons, there is no error apparent in the decision of the Tribunal or in the approach taken by the Federal Magistrate in reviewing that decision.  For these reasons, I propose to dismiss the appeal with costs.

15. The first respondent has sought a fixed sum costs order.  The amount which is claimed ($3,470.00) is reasonable.  The appellants made no submissions against the making of such an order.  Accordingly, I order that the costs of the first respondent be fixed in the amount of $3,470.00.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        19 August 2009

The Appellants appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

Date of Hearing:	17 August 2009
Date of Judgment:	17 August 2009