SZNRW v Minister for Immigration and Citizenship

[2010] FCA 600

FEDERAL COURT OF AUSTRALIA

SZNRW v Minister for Immigration and Citizenship [2010] FCA 600

Citation:		SZNRW v Minister for Immigration and Citizenship [2010] FCA 600
Appeal from:		SZNRW v Minister for Immigration & Anor [2009] FMCA 1184
Parties:		SZNRW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1449 of 2009
Judge:		GILMOUR J
Date of judgment:		16 June 2010
Legislation:		Migration Act 1958 (Cth) s 424A, 425
Cases cited:		Abebe v Commonwealth (1999) 162 ALR 1 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CKR 259 Minister for Immigration and Citizenship v SGLB (2004) 207 ALR 12
Date of hearing:	7 May 2010
Place:	Perth (heard in Sydney)
Division:	GENERAL DIVISION
Category:		No catchwords
Number of paragraphs:	34
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Mr A Markus
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1449 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNRW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	16 JUNE 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent to be taxed if not agreed.  

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 1449 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNRW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	16 JUNE 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 8 December 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 1 June 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, a citizen of India, was born there in Thumba, Kerala, in 1972.  The appellant arrived in Australia on 9 July 2008, and on 21 August 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 19 November 2008.  On 8 December 2008, the appellant applied to the Tribunal for a review of that decision.

3. In his visa application the appellant claimed to fear persecution for all five of the convention grounds, noting that these are ‘for the most part… indistinguishable from each other.’  He claimed to be a Christian and a social activist in Kerala campaigning against the consumption of alcohol and drugs between 2000-2002.

4. The appellant claimed he was subsequently attacked by drug and alcohol dealers.  He claimed that after the CPI-M came to power, the police officers and Muslims joined together to make money through the sale of alcohol and drugs.  He claimed he was beaten by the authorities and Muslim gangs and that because of his campaigning he and his family were threatened by a businessman known as Manichan.

5. He also claimed to fear harm from the police and corrupt officials involved with them, and stated that false criminal charges which were initiated in 2001 might be reinstated.  More generally, he claimed that his profile as a social activist and anti-liquor campaigner put him at risk anywhere in India.

   THE TRIBUNAL DECISION

6. The appellant attended a hearing on 5 February 2009 and gave oral evidence to the Tribunal.  The following day the appellant raised concerns about the quality of the interpretation.  He indicated, without giving any examples, that he had not understood all of the Tribunal’s questions and information that had been put to him.  The Tribunal arranged for a second session of the hearing, which the appellant attended on 11 February 2009.  The resumed session was to allow the appellant time to revisit any points he had felt were unclear.

7. Following the hearing the Tribunal wrote to the appellant on 17 February 2009 inviting him to comment on matters raised at the hearing pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). In particular, the Tribunal referred to information he had given to the Tribunal at the hearing about criminal charges for assault and explosives possession allegedly laid against him by the police, which were not included in his claims in his protection visa application form. The Tribunal’s letter also raised concerns about the appellant’s credibility and referred to specific instances such as his attempt to conceal from the Department and the Tribunal that his brother had travelled with him to Australia and lived with him; his past reliance on false documents; and his ability to obtain a passport in his own name in 2006 and renewed again in 2007.

8. The appellant, in response, provided detailed submissions and supporting documents by letter dated 11 March 2009.  His responses, in summary, were as follows:

   ·He was suffering from mental depression and was undergoing treatment at the Asylum Seekers Centre.

   ·He gave false evidence about his brother on the recommendation of his former migration agent.

   ·He did not have funds to have the documents in Malayalam translated into English.

   ·The police forged and manipulated the documents containing criminal charges against him and police officers continued to harass him even though the Trivandrum Magistrates Court had granted him bail.

   ·His wife had an abortion, which he attributed to harassment and an attack by ‘anti-social elements’, which led to his resignation from the Kerala Catholic Bishops Council anti-liquor campaign

   ·He feared persecution because of his involvement in evangelistic activities.

9. The Tribunal noted the appellant’s claim that he feared persecution under all five Convention grounds.  It accepted that his claims related to his actual and imputed political opinion and to his religion and that there was a particular social group in Kerala consisting of lay Catholic social activists or anti-liquor campaigners.  The Tribunal did not find anything in the appellant’s claims to suggest that he feared persecution on the Convention grounds of nationality or race.

10. The Tribunal noted the appellant’s claim made at the hearing that he was suffering from depression.  The Department file included a recent psychological assessment that the appellant had symptoms associated with depression and post traumatic stress syndrome.  However, the Tribunal found that the appellant, at the hearing, was confident and assertive, although his evidence was often unfocused and discursive. It did not observe anything that might bring into question his competence to present his refugee claims.  The Tribunal was satisfied that the standard of interpretation and the time given over the two hearings sessions had given the appellant a full opportunity to give evidence and present his arguments.

11. The Tribunal accepted that the appellant had been active in the Latin Catholic community in Thumba, that he was the Regional Co-ordinator of the Kerala Catholic Bishops Council’s anti-liquor Commission from 2000 to 2002 or perhaps through to 2004.  However, the Tribunal found that the appellant had exaggerated his profile and that in any event it had significantly waned since 2004.  From information provided by the appellant, the Tribunal found that he worked as a computer technician and administrator operating his own business from 1997 until his departure from India and that he also worked as a computer consultant at a nearby college.

12. The Tribunal had “comprehensive concerns” about the appellant’s credibility, and found that he gave misleading information about his use of a false passport, the nature and extent of his involvement in relation to it, and his motivation for doing so.  The Tribunal also found that the appellant gave misleading information about his brother’s travel to Australia with him and their co-residence in Sydney.  Based on the evidence, the Tribunal also dismissed his claims that he knew nothing about the identity of the person whose name, falsely, he had used on his passport.  It found that this person was actually linked to the appellant’s sister-in-law.  She and her husband, the appellant’s brother, lived with the appellant in Sydney.Accordingly, the Tribunal placed no weight on the appellant’s use of a false passport as evidence that he escaped persecution in India.

13. The Tribunal for two reasons, did not accept that the appellant had false claims of criminal charges pending in India.  First, the Tribunal found that the appellant’s credibility was ‘so seriously impaired’, it considered that he was willing and able to arrange the manufacture of false documents provided to the Tribunal in relation to those charges.  Second, it noted that the appellant did not mention any criminal charges in his written or oral evidence to the Department.  The Tribunal found at [107] that the explanation provided by the appellant in relation to this did not “adequately explain the complete omission of reference to such a critical claim”.  

14. The Tribunal found that the appellant’s conduct in India was inconsistent with that of a person who feared persecution.  In addition, the fact that he concealed his relationship with his brother who was in Australia and who could have provided significant corroboration of both his claims of pending criminal charges and fear of harm to the appellant’s family, suggested to the Tribunal that he did this because his refugee claims were not truthful.  

15. The Tribunal also took into account the appellant’s ability to obtain a renewed passport and his continued employment in India which it considered suggested the authorities had no interest in the appellant and that the appellant had no real fear of persecution.  

16. The Tribunal also found that the appellant’s claims regarding Manichan and his associates were unconvincing and that they were crafted for the purpose of the application to demonstrate a well-founded fear of persecution.  The Tribunal, based on its adverse view of the appellant’s credibility, similarly found the other claims of past harm to himself and to his family to be fabrications.  It did not accept that the appellant had suffered harm or made changes to his political or social activism, places of residence, employment or other aspect of his life to avoid harm from the police or liquor barons.

17. The Tribunal found that the appellant would, if he was to return to India, resume his family and business interests, and again become involved in Catholic social work.  Based on the evidence, which included independent country information, the Tribunal found that there was no real chance of the appellant experiencing persecution for any Convention reason.

18. Given the above findings, the Tribunal stated that it did not need to decide whether his claims were Convention-related, or whether he would in any event be able to relocate to another part of India.  The Tribunal also noted that the appellant had not claimed, nor was there any evidence to suggest, that the appellant would be persecuted for a Convention reason by the Indian authorities due to the fact that he left India on a false passport.

19. Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution in India for a Convention reason, and affirmed the decision under review.

    FEDERAL MAGISTRATES COURT

20. On 22 June 2009, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.  In an amended application filed on 22 September 2009, the appellant raised five grounds, which were summarised by the Federal Magistrate as being:

    1.A complaint of “mal-interpretation” at each of the Tribunal hearings, so that the Tribunal Member did not get the “real feelings” of his case;

    2.A complaint that he was provided with a CD of a Tribunal hearing that was not his hearing, even though he conceded that he received the CDs that did relate to his case;

    3.A complaint that the threats of death he received and those received by his wife and children caused him psychological problems but when he revealed this situation to the Tribunal the Tribunal member simply “refused (his) needs”;

    4.A complaint that the Tribunal “humiliated” a priest in India who had helped him to obtain a fake passport; and

    5.A complaint that the Tribunal made a “puzzleful decision” in obtaining country information from the Internet which was peripheral, so that the Tribunal did not take any steps to find out the “deep information” about his case.

21. In respect of the first complaint, the Federal Magistrate declined the appellant’s request to listen to the CD because he had not provided any information as to the alleged interpreting errors or how this had affected his ability to obtain a fair hearing.  The Federal Magistrate stated that the material before the Court was not sufficient to make out a case that the interpretation before the Tribunal was so incompetent that the appellant was prevented from giving his evidence, or that that there was any departure from the required standard of interpretation relating to a matter of significance for the appellant’s claim or the Tribunal’s decision.  Further, there was no evidence of any errors by the interpreter at the Tribunal hearing that were material to the conclusion of the Tribunal adverse to the appellant.

22. In respect of the second complaint, the Federal Magistrate stated that whilst it may have been an administrative error to send a copy of the wrong hearing tape to the appellant, it was not an error of law, let alone a jurisdictional error.

23. In respect of the third complaint, the Federal Magistrate noted the Tribunal was aware of the appellant’s psychological difficulties and took this matter into account; there was no evidence to show that the appellant was not in a fit mental state to have given evidence at the Tribunal hearing.

24. In respect of the fourth complaint, the Federal Magistrate found that this was not a ground of review, and did not in any event reveal jurisdictional error.

25. In respect of the fifth complaint, the Federal Magistrate stated that it is well established that it is a matter for the Tribunal which country information it refers to and what weight it gives to that information.  Further, there was no general obligation on the Tribunal to make its own independent inquiries as to his refugee claims.

26. Finally, the Federal Magistrate found that the Tribunal had complied with its obligations under ss 424A and 425 of the Act.

27. Having found no jurisdictional error in the Tribunal’s decision, his Honour dismissed the application.

    APPEAL TO THIS COURT

28. The appellant filed a notice of appeal on 17 December 2009.  The Notice of Appeal contains two grounds:

    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 Tribunal was un satisfied that there is a real chance that I would suffer harm amount to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal

    [Transcribed without amendment]

    CONSIDERATION

29. The first ground merely claims that the Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to it to find that the appellant was a refugee within the meaning of the Act.  However, it is well established that there is no general obligation on the Tribunal to make its own inquiries: Minister for Immigration and Citizenship v SGLB (2004) 207 ALR 12 at 43. It is not the task of the Tribunal to make out an applicant’s case for him or her: Kioa v West (1985) 159 CLR 550 at 587. As the Federal Magistrate’s reasons for judgment disclose, the appellant’s claims were carefully considered and addressed. The appellant otherwise complains that the error lay in the Federal Magistrates failing to find error in the Tribunal’s decision. This Court may not engage in a re-evaluation of the evidence arising from the appellant’s disagreement with the Tribunal’s findings: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth (1999) 162 ALR 1.

30. As to the second ground, while the appellant may disagree with the Tribunal’s lack of satisfaction as to the credibility of his claims, no further particulars have been provided in support of this ground pointing to any jurisdictional error made.  

31. At the hearing of the appeal before me the appellant, in effect, repeated the arguments which had been made by him in the Court below.  No objection to this course was taken by counsel for the first respondent.

32. Whilst the Tribunal accepted some of the background facts put forward by the appellant it had “comprehensive concerns” about his credibility.  Those findings were well open to it on the evidence.  Having formed an adverse view of his credibility, and given its specific concerns with his claims, the Tribunal found that the appellant misconstrued his circumstances in order to bolster his refugee claims.  The Tribunal was therefore satisfied that the appellant did not meet the criterion for a protection visa as set out in s 36(2)(a) of the Act, and affirmed the decision under review.  This was its jurisdictional task as required by s 65(1)(b) of the Act.  

33. Both grounds of appeal must fail.  I am unable to discern any relevant error on the part of the Court below in its detailed consideration of the Tribunal’s reasons.  I agree with its conclusions and reasoning.

    ORDERS

34. For the above reasons the appeal should be dismissed with costs.

I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       16 June 2010