SZNJR v Minister for Immigration and Citizenship

[2009] FCA 1318

FEDERAL COURT OF AUSTRALIA

SZNJR v Minister for Immigration and Citizenship [2009] FCA 1318

SZNJR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 755 of 2009

COLLIER J
13 NOVEMBER 2009
BRISBANE (VIDEO TO SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 755 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNJR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	13 NOVEMBER 2009
WHERE MADE:	BRISBANE (VIDEO TO SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with 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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 755 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNJR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	13 NOVEMBER 2009
PLACE:	BRISBANE (VIDEO TO SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Cameron FM delivered on 1 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 3 March 2009.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 6 July 2008. On 18 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 3 November 2008. On 26 November 2008 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to have a well-founded fear of persecution because of his political opinion and his religion. He claimed that he was actively involved with the CPI-Maoist Party and was a key member of the People’s War Group. He stated that his opponents included the BJP and Congress Parties. He claimed that while he was in Singapore (2001-2003) he organised a workers strike, which resulted in him being arrested and charged. He stated that he was forced to resign his job and thereafter left Singapore, returning to India.  The appellant claimed that he was arrested in 2007 in Kerala by the same police officer who arrested him in Singapore. Before the Tribunal the appellant also claimed that he was fleeing India because he feared harm from a faction with the Maoist movement for aligning himself with the Catholic Church.

   PROCEEDINGS BEFORE THE TRIBUNAL

4. The Tribunal stated that the appellant’s claims were inconsistent and confused, and labelled the factual shift from fearing harm from outside the Maoist movement to fearing harm from within it as “stark and unresolved”. It found that the appellant was an unreliable witness with no externally perceptible political interest at all. In making this finding the Tribunal noted that the appellant performed poorly in response to all questions regarding Maoist teachings and gave inconsistent evidence as to the year that he obtained his membership card. It further noted that independent country information stated that the party did not exist under the name given by the appellant until 2004; his explanation as to how he could have joined a party by that name in the 1990s was, according to the Tribunal, a “poorly-contrived improvisation.”

5. The Tribunal did not accept that the appellant would be imputed to be a Maoist or be imputed by Maoists to be a political foe or traitor and stated that the whole fabric of his substantive claims was undone by the inconsistency in his evidence. The Tribunal also found that the fact that the appellant was able to travel out of and back into India on a valid passport gave weight to the conclusion that he was not and would not be of any relevant interest to the Indian authorities. The Tribunal rejected the appellant’s claims, finding that there was no real chance of him suffering persecution in India for a Convention related reason.

   APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT

6. On 27 March 2009 the appellant filed an application for judicial review of the Tribunal’s decision. In his application the appellant contended that:

   1.I am refugee and unable to go back to my country due to political problem.

   2.Due to changing my religion I have come under pressure from political member.

   3.Due to being a particular race, I am constantly under a threat of harm from major races.

7. Federal Magistrate Nicholls found that the first two grounds of the appellant’s application invited the Court to undertake a merits review of his application, a function which the Court could not do. In relation to the third ground, his Honour noted that the claim had not been made either to the delegate or the Tribunal. His Honour found that the claim was not reasonably apparent on the face of the appellant’s case and therefore the Tribunal did not err by not identifying or failing to seek out such a claim.

8. His Honour also considered the appellant’s claim that he was denied sufficient opportunity to submit some documents, finding that there was no evidence to support a conclusion that the Tribunal was at any time aware that he wished to produce further documents to it and that he needed additional time in order to do so. His Honour found that as the Tribunal was not invited to delay the making of its decision, there could be no question of a miscarriage of discretion in the fact that it proceeded to make its decision when it did.

9. Having found no jurisdictional error in the decision of the Tribunal, his Honour dismissed the appeal.

   APPEAL TO THIS COURT

10. By Notice of Appeal filed on 22 July 2009, the appellant raised the following grounds of appeal against the decision of Cameron FM:

    1.I am not at all satisfied with this decision.

    2.Federal Magistrate and RRT officer did not use their source to find out the real truth.

    3.I was ill treated by antisocial people, but the Court and RRT deliberately refuse the truth. 

11. At the hearing of the appeal before me the appellant was self-represented. Through the interpreter the appellant submitted that he wanted an opportunity to produce more evidence which he had obtained from his parents to the Tribunal.

12. The appellant’s grounds of appeal are vague and unparticularised. Further:

    ·The fact that the appellant is appealing the decision of the Federal Magistrate is a clear indication that he is not satisfied with that decision. Without more, this state of dissatisfaction does not constitute a proper ground of appeal.

    ·It was for the appellant to make his case to the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510 at 576. The Tribunal is under no duty to inquire beyond the material before it to find the “real truth” as claimed by the appellant: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22.

    ·The alleged ill-treatment claimed by the appellant in his third ground of appeal does not, without more, indicate that the appellant has a well-founded fear of persecution for a Convention reason.

    ·The Tribunal’s findings in respect of the credibility of the appellant are matters for the Tribunal: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. Further, the role of the Tribunal is as an arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. To the extent that the appellant challenges the findings of the Tribunal on the facts he seeks a merits review, which is outside the jurisdiction of the Court : NAHI v MIMIA [2004] FCAFC 10 at [10].

    ·As I have already noted the Federal Magistrate found that there was no evidence to support a conclusion that the Tribunal was aware that the appellant wished to produce further evidence or that he needed additional time to do so. There is no material before this Court to warrant a finding that the Federal Magistrate erred in relation to that decision.

13. The appeal should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       13 November 2009

Solicitor for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Ms A Nanson of Australian Government Solicitor

Date of Hearing:	13 November 2009
Date of Judgment:	13 November 2009