SZOHH v Minister for Immigration and Citizenship

[2011] FCA 1017

FEDERAL COURT OF AUSTRALIA

SZOHH v Minister for Immigration and Citizenship [2011] FCA 1017

Citation:		SZOHH v Minister for Immigration and Citizenship [2011] FCA 1017
Appeal from:		SZOHH v Minister for Immigration [2011] FMCA 229
Parties:		SZOHH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 507 of 2011
Judge:		SIOPIS J
Date of judgment:		1 September 2011
Date of hearing:	3 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr J Pinder
Solicitor for the First Respondent:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 507 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOHH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	1 SEPTEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs to be agreed or taxed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 507 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOHH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	1 SEPTEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 6 April 2009.  On 8 April 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. The appellant claimed that he feared persecution by reason of his political views.  In his application for a protection visa, the appellant claimed that he was an active member of the Communist Party of India (CPI(M)) and, at one time, the president of the Student Federation of India (SFI) during his time at College at Trivandrun.  The appellant said that SFI won the campus elections and as a result, members of Akhila Bharatiya Vidyarthi Parishad (ABVP) and Rashtriya Swayamsevak Sangh (RSS) tried to attack him. The appellant said that a friend of his, Mr Ayayan, was killed by members of the RSS, and that as a result he could not complete his studies.

3. The appellant claimed that he was also a village committee member of the Democratic Youth Federation of India (DYFI).  The appellant said that the RSS carried out competing youth activities, and that the RSS tried to “attack and destroy” him.  The appellant went on to say that he left India and went to the United Arab Emirates for three months.  However, after the appellant returned in September 2007, the RSS again attacked the appellant and issued death threats to him.

4. The appellant claimed he then went to stay in Mumbai and that members of the RSS attempted to find him.  The appellant said that his friend, Mr Vishnu, was killed on 1 April 2008 by members of the RSS and he thought he would be the next target.

5. The appellant went on to say that two RSS members were subsequently killed by members of the CPI(M) and that the RSS believed the appellant and his friends were responsible for these murders.  The appellant claimed that he was attacked by members of the RSS and was admitted to an Intensive Care Unit.  He then claimed that he left India because he feared for his life.

6. A delegate of the first respondent refused the application for a protection visa on 1 July 2009, on the basis of inconsistencies in the appellant’s evidence.

7. The appellant applied to the Refugee Review Tribunal on 24 July 2009 for a review of the delegate’s decision.

8. The Tribunal affirmed the delegate’s decision on 10 March 2010.

9. On 26 August 2010, a Federal Magistrate quashed the Tribunal’s decision and remitted the matter to the Tribunal.

10. On 3 December 2010, the appellant attended a hearing of a differently constituted Tribunal at which the appellant gave evidence.  By a letter dated 3 December 2010, the Tribunal invited the appellant to comment on a number of apparent discrepancies between the evidence he gave at the December 2010 Tribunal hearing, the evidence he gave at the first hearing of the Tribunal, his statement accompanying his visa application, the contents of his interview with the delegate, and the contents of documents he had submitted to the Tribunal.  The appellant, by his migration agent, responded by a letter dated 20 December 2010.  On 7 January 2011, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa.

    THE TRIBUNAL

11. The Tribunal identified, in its decision record, inconsistencies in the appellant’s evidence in three aspects of his claims.  These were:  the appellant’s evidence in relation to his claimed past experiences of harm, the evidence given by the appellant of his claimed membership of the CPI(M), and the evidence of the appellant’s residential addresses and movements in India.

12. The Tribunal found that the appellant had manipulated his evidence to enhance his story.  The Tribunal did not accept that the appellant was a member or supporter of SFI, DYFI or the CPI(M).  The Tribunal did not accept that the appellant had been abused or targeted by ABVP or RSS.  The Tribunal was not satisfied the appellant held a well‑founded fear of persecution or that there was a real chance he would be harmed if he returned to India.

    FEDERAL MAGISTRATES COURT

13. On 4 February 2011, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  That application comprised the following grounds of review:

    1.I provided documents to the Tribunal to corroborate my claims.  In particular a copy of medical certificate issued by the department of cardiology and signed by Dr. Praveen Velappan, a copy of letter from DYFI Secretary and the news papers articles.  The Tribunal failed to engage in an active intellectual process in respect of those documents.  The Tribunal ultimately gave the documents no weight on the basis of its credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging in an intellectual process as to the contents of the documents.  It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the documents corroborated my claims.

    2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

14. On 5 April 2011, the Federal Magistrate dismissed the appellant’s application for judicial review.

15. The Federal Magistrate found no evidence that the appellant was denied a proper opportunity to explain his case at the second Tribunal hearing and to answer the Tribunal’s concerns. In relation to the contention that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth), the Federal Magistrate noted that there was no information relied upon by the Tribunal that gives rise to any obligation on the Tribunal under s 424A(1), but observed that the Tribunal had, in any event, written to the appellant outlining its concerns as to the inconsistencies in his evidence.

16. The Federal Magistrate also noted that at the heart of the Tribunal’s decision were its adverse credibility findings in respect of the totality of the appellant’s claims.

17. The Federal Magistrate also observed that it was apparent from the delegate’s decision that the appellant’s credibility was in issue, and that he should have been aware that his credibility was also in issue before the second Tribunal.  The Federal Magistrate also observed that the Tribunal’s credibility findings were open to it on the material before it.

    APPEAL TO THIS COURT

18. On 21 April 2011, the appellant filed a notice of appeal in this Court which stated:

    1.The Hon FM failed to take consideration that the second respondent committed jurisdictional error by failing to address the applicant’s claims in the way they were made.

    Particulars:

    a.The applicant stated in his protection visa application that he was an active member of SFI and also it’s President at college.

    b.He had many enemies as the President of SFI including the Rashtriya Swayamsevak Sangh (RSS).

    c.The RSS tried to attack him when the SFI achieved a victory in campus election. One of the fellow members was killed as a result of attacks.

    d.The RSS eventually attacked him, causing him to be hospitalised in ICU.

19. There was no ground of review before the Federal Magistrate which complained specifically that the Tribunal had fallen into jurisdictional error on the basis that the Tribunal had failed to give consideration to his claims.

20. Counsel for the first respondent did not, however, object to the appellant raising this as a ground of appeal, and has addressed the merits of the appellant’s claim in his submissions.

21. For the following reasons, I dismiss the appellant’s appeal.

22. It is apparent from a perusal of the decision record of the Tribunal that it gave comprehensive consideration to the claims made by the appellant.  The Tribunal records and closely analyses the claims made by the appellant on his protection visa application, in the interview before the delegate, his evidence at the first hearing of the Tribunal, and his evidence at the second hearing.

23. The appellant, in his particulars to the grounds of appeal, referred to specific aspects of his claim that he contends were not considered by the Tribunal.  However, it is apparent from paragraphs [22] to [26] of the Tribunal’s decision record that the Tribunal was aware of the claims made by the appellant to the effect described in the particulars.  However, it is also apparent from the Tribunal’s reasons that the Tribunal did not accept those claims for credibility reasons.  It was open to the Tribunal, on the basis of the credibility findings it made, not to accept the appellant’s claims.  The non-acceptance by the Tribunal of the claims, on credibility grounds, was not a jurisdictional error.  The question of credibility is a matter for the Tribunal.

24. During oral argument, the appellant also contended that the Federal Magistrate had already made up her mind and did not properly consider his case.  However, the appellant did not expand upon this claim.  It is well‑established that a claim of bias must be supported by particulars and evidence.  The appellant did not do this.  It is also apparent from the Federal Magistrate’s reasons that the Federal Magistrate gave close consideration to the case made by the appellant before the Federal Magistrate, and I dismiss this contention.

25. I, therefore, dismiss the appellant’s appeal.

I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        1 September 2011