SZNLE v Minister for Immigration and Citizenship

[2010] FCA 212

FEDERAL COURT OF AUSTRALIA

SZNLE v Minister for Immigration and Citizenship [2010] FCA 212 

Citation:		SZNLE v Minister for Immigration and Citizenship [2010] FCA 212
Appeal from:		SZNLE v Minister for Immigration & Anor [2009] FMCA 1247
Parties:		SZNLE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1470 of 2009
Judge:		NORTH J
Date of judgment:		3 March 2010
Date of hearing:	3 March 2010
Date of last submissions:	3 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Appellant:	Appeared in person
Counsel for the Respondents:	G Johnson
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1470 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNLE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	3 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed;

2.The appellant pay the first respondent’s costs of the appeal.

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
GENERAL DIVISION	NSD 1470 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNLE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	3 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by the Federal Magistrates Court on 8 December 2009.  On that day the Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 10 March 2009 in which the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant a protection visa.

   BACKGROUND

2. The appellant is a citizen of India who was born in Marianad in Kerala.  He is a Christian by religion.  He claimed to have worked for the Fishermen’s Charitable Societies for about 10 years.  He claimed that when the Communist Party of India came to power it backed the Muslims in fishing villages to acquire properties from Christians by force.  The appellant resisted these activities by Muslim businessmen.  He claimed that the Muslim thugs had the backing of police. 

3. The appellant claimed that in December 2006 three men dragged him out of his house by force and attempted to drown him.  This was related to his attempts to prevent Muslims forcing Christians to sell their properties to them. 

4. The appellant then claimed that in 2008 he was followed by men in a suspicious manner.  He heard that people were trying to kill him, and therefore left for Kanniyakumari in Tamil Nadu.  He said that upon his arrival he discovered that Muslims were trying to buy properties from Tamil fishermen.  Following his arrival, he claimed to have been abducted by Muslims and taken to Beemapalli Muslim area, where he was kept for a month.  He said that he had been beaten for working against the Muslims in Marianad, and he had been raped and threatened with death.  This caused him to come to Australia, which he was able to do through his Christian contacts, to attend World Youth Day.

   THE DECISION OF THE TRIBUNAL

5. The Tribunal questioned the appellant closely, and found the appellant’s answers unsatisfactory.  He comprehensively rejected each of the elements of the appellant’s claims, pointing out a number of inconsistencies in his evidence.  The Tribunal’s conclusions were stated as follows:

   67.Having regard to the problems I have with the applicant’s credibility I do not accept that he is telling the truth with regard to the events which he claims prompted him to leave India and to seek protection in Australia.  I do not accept that the applicant was targeted by Muslim businessmen or the Muslim mafia because he opposed their attempts to buy properties in Kerala or elsewhere.  I do not accept that the applicant was ever threatened by Muslims or people acting on behalf of Muslim businessmen or the Muslim mafia, that three men attempted to kill him by drowning him in the sea towards the end of 2006, that he was followed by suspicious men at some time in 2008 or that he was kidnapped from Kanniyakumari and taken to Beemapalli near Trivandrum where he was tortured, told to leave India and forced to pay money for his release.  I do not accept that the applicant ever had any problems with the police as he claimed in the statement accompanying his original application, nor do I accept that, as he said at the hearing before me, the Muslim mafia are still looking for him now.    

   THE JUDGMENT OF THE FEDERAL MAGISTRATE

6. The appellant then filed an application for review in the Federal Magistrates Court.  The grounds set out in the application were jurisdictional error, breach of procedural fairness and breach of natural justice.  The appellant was not represented before the federal magistrate. 

7. The federal magistrate clearly endeavoured to assist the appellant as best she could. From evidence and cross-examination of the appellant she distilled four grounds of complaint which appeared to be of concern to the appellant.  These were at [25]:

   i)That the Tribunal asked the applicant irrelevant questions about the other Cooperative Fisherman’s Society in Marianad, and asked him when his society was established. 

   ii)That the interpreter summed up and did not convey his evidence properly.

   iii)That the hearing was not conducted in a fair or satisfactory manner.

   iv)That the Tribunal should have investigated his claims.

8. The federal magistrate then dealt with each of the grounds which she had distilled.  In relation to the first ground the federal magistrate examined the transcript of the hearing before the Tribunal and determined that the Tribunal acted properly in testing the evidence of the appellant.

9. In particular, she addressed the question of the nature of the society for which the appellant worked, and said at [30]:

   It was in the process of exploring the information above with the applicant that the Tribunal asked the applicant if he knew when Marianad was established.  The applicant responded that the society was founded in 1997.  The Tribunal clarified its question by making clear to the applicant that it was talking about the establishment of the village itself.  The Tribunal said that Marianad was established by the Latin Catholic Church, to which the applicant claimed to belong.  The applicant again confirmed that the Cooperative, established by fishermen in Marianad with the assistance of the Catholic Church, was established in 1997.  As stated above, country information before the Tribunal revealed that the Cooperative was established in 1971.  The applicant then responded that there were other societies, including government societies, although the applicant stated that his society was not a government society. 

10. The federal magistrate concluded at [31]: 

    In the circumstances, it was certainly appropriate for the Tribunal to explore with the applicant country information that was inconsistent with his claims, including its questions about the applicant’s knowledge of Marianad and its Cooperative.  This was plainly relevant where the applicant claimed to be a member of a different society engaged in the same work as the Cooperative and with a similar name when the Tribunal had country information about Marianad before it that was inconsistent with the applicant’s claims.

11. In relation to the quality of interpretation, the federal magistrate again analysed the transcript of the proceedings before the Tribunal.  She concluded at [37] as follows:

    A fair reading of the transcript does not suggest that the applicant had any difficulty in understanding the questions from the Tribunal Member, as he appeared to answer most of them in a responsive fashion.  Certainly, there was no complaint made by the applicant to the Tribunal Member of any failure by the applicant to understand any of the questions put to him.  Neither do the exchanges with the Tribunal Member suggest that the Tribunal Member had difficulty understanding the thrust of the applicant’s evidence. 

12. In relation to the third ground, that the hearing was not conducted fairly, the federal magistrate distilled from the appellant that his complaint related to two documents which he said the Tribunal had failed to accept.  One was a letter purportedly from a Father Ashwyn, dated 5 January 2009 and written in Malayalam, and the second was a letter on Marianad Fishermen Charitable Society letterhead, dated 15 January 2009, accompanied by an English translation.

13. The federal magistrate found, in relation the latter of these, that the appellant had not sought to proffer that letter to the Tribunal.  In relation to the letter purportedly from Father Ashwyn, the federal magistrate observed that the letter had been handed to the Tribunal and, because the letter had not been translated into English, the Tribunal asked the appellant to explain its contents to the Tribunal.  The appellant then did so.  The federal magistrate then explained that the Tribunal referred to the letter in its decision and said that it was for the Tribunal to evaluate the evidence and place such weight on it as it saw fit. 

14. Finally, the federal magistrate considered the ground that the Tribunal should have investigated the appellant’s claims. The federal magistrate described the process undertaken by the Tribunal and observed that the Tribunal had regularly asked the appellant open-ended questions about his claim, giving him a fair opportunity to explain the elements of his claim. 

    THE APPEAL

15. On 22 December 2009 the appellant filed a notice of appeal in this Court.  The grounds stated were:

    1.The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal, The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.

    2.Te [sic] Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I returned to India, This is a serious Jurisdictional error made by the Tribunal.

16. These grounds are unparticularised.  The second sentence of the first ground amounts to a challenge to the fact findings of the Tribunal.  They cannot ground any allegation of jurisdictional error.

17. The appellant appeared on the appeal without legal representation.  The concept of judicial review was explained to the appellant and he was then asked to put any arguments in support of the appeal.  He repeated the grounds raised before the federal magistrate which related to the Tribunal asking irrelevant questions and the quality of the interpretation.  In part, he complained about the Tribunal’s conclusion that he was not a reliable witness.

18. The federal magistrate made no error in dealing with the question of whether the Tribunal had asked irrelevant questions.  She was correct to find that the questioning was no more than a proper testing of the claims made by the appellant.  Similarly, the federal magistrate made no error in dealing with the ground concerning the quality of interpretation.  It follows that the appellant has not made out a case that the federal magistrate erred in any way.  Indeed, it is difficult to imagine a more comprehensive and fair minded response to the appellant’s case. 

I certify that the preceding nineteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        15 March 2010