SZOKK v Minister for Immigration and Citizenship

[2010] FCA 1198

FEDERAL COURT OF AUSTRALIA

SZOKK v Minister for Immigration and Citizenship [2010] FCA 1198

Citation:		SZOKK v Minister for Immigration and Citizenship [2010] FCA 1198
Appeal from:		SZOKK v Minister for Immigration and Citizenship and Anor [2010] FMCA 582
Parties:		SZOKK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1066 of 2010
Judge:		COLLIER J
Date of judgment:		3 November 2010
Legislation:		Migration Act 1958 (Cth)
Date of hearing:	3 November 2010
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Ms A Crittenden of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1066 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOKK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	3 NOVEMBER 2010
WHERE MADE:	BRISBANE (HEARD IN 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1066 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOKK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	3 NOVEMBER 2010
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Driver FM delivered on 3 August 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 15 April 2010. 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 19 August 2009. On 24 September 2009 the appellant 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 17 December 2009. On 13 January 2010 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed that he is a Hindu who resided in a Muslim community in India. He claimed that his property is very valuable, and that certain persons wished to acquire it at any cost. One of these persons was a well-known Muslim criminal by the name of “Babu Khan”, who was also the father of a female the appellant had engaged in a romantic relationship with. The appellant claimed that when Mr Khan discovered the affair between his daughter and the appellant, he killed his daughter and threatened to kill the appellant. He claimed that Mr Khan and his followers had also attacked his family on multiple occasions, and threatened them with death several times. Consequently, his father arranged for him to travel to Australia with a cricket team in order to escape.

   REFUGEE REVIEW TRIBUNAL

4. The Tribunal found the appellant was not a witness of truth. In particular, the Tribunal found that the appellant’s responses to questions were generally vague and uninformative; that he was prepared to vary his claims when they were challenged; and that his evidence did not suggest that he had direct knowledge of incidents which he claimed to have witnessed or that his account was based on authentic experience. The Tribunal attributed the appellant’s non-responsive answers to evasiveness, as there was no evidence before it to suggest that the appellant suffered from any psychological or cognitive difficulties as he had claimed. The Tribunal also found that the appellant failed to provide a plausible explanation for any significant discrepancies between his written claims in his protection visa statement and his oral claims at the Departmental interview and the Tribunal hearing.

5. Accordingly, the Tribunal was not satisfied that the appellant was involved in an affair with the daughter of a Muslim criminal by the name of Babu Khan who attempted to kill him for any reason, nor was the Tribunal satisfied that Mr Khan tried to force the appellant or his family to sell property to him.

6. On the basis of the above, the Tribunal found that the appellant did not satisfy the criterion for a protection visa, and affirmed the decision of the delegate.

   FEDERAL MAGISTRATES COURT

7. On 13 May 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In that application the appellant contended that:

   1.        The Tribunal constructively failed to exercise its jurisdiction.

   Particulars

   i It was an error for the Tribunal to place no weight on the applicant’s claim without engaging in an intellectual process as to contents of the statement.

   ii The Tribunal did not consider the applicant who had been under immense pressure from Babu Khan.

   iii 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.

   2.The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

8. The Federal Magistrate rejected each of the grounds of the application. Specifically, the Federal Magistrate stated that the Tribunal considered and actively engaged with the appellant’s claims, including the written statement attached to his application, and explored his claims with him at the hearing, namely, that he was threatened and attacked by Babu Khan for various reasons. Further, there was nothing to indicate that the Tribunal failed to comply with its obligations under the Migration Act 1958 (Cth) (“the Act”). His Honour stated that the Tribunal was well aware of the four key elements in the Convention definition, but was not satisfied that the appellant met this criterion. Finally, his Honour noted that there was nothing to suggest that the review process was subverted or disabled by reason of any medical condition suffered by the appellant.

9. Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

   APPEAL TO THIS COURT

10. By Notice of Appeal filed on 19 August 2010, the appellant raised the following grounds of appeal against the decision of Driver FM:

    1.The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

    2.The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

    [Errors in original]

    CONSIDERATIONS

11. At the hearing of the appeal before me the appellant was self-represented. The Minister was represented by a solicitor.

12. The Minister submits that the notice of appeal raises new grounds of appeal not before the Federal Magistrate below, and that the Court ought not grant leave for these new grounds to be raised on the basis that, inter alia, they are without merit.

13. In my view the appellant’s grounds of appeal are without merit. I form this view for the following reasons:

    ·In respect of the first ground of appeal:

    oIt is not obvious to me that the Tribunal has acted in a manifestly unreasonable way when dealing with the appellant’s claims.

    oIn its decision the Tribunal specifically addressed the requirements of s 91R of the Act, and in particular the elements of “persecution” under the Act and within the meaning of the Refugees Convention (in particular at [13] and [15]).

    oThe Tribunal considered in detail the claims of the appellant and his allegations that he fears harm in India because of threats by Babu Khan, however concluded that the appellant’s claims were not credible. The Tribunal noted that the appellant did not claim to fear harm in India for any other reason and no other reason was apparent on the face of the information before the Tribunal (at [61]-[62]). Accordingly the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention Reason should he return to India now or in the reasonably foreseeable future, and was not satisfied that he was a refugee.

    oIt is clear that the Tribunal properly discharged its obligation to consider the claims of the appellant that he was a refugee. The fact that the Tribunal did not accept the appellant’s claims did not mean that the Tribunal acted unreasonably, nor that it had not properly performed its duties.

    ·In respect of the second ground of appeal I consider it clear that the Tribunal comprehensively considered the claims made by the appellant. Again, the fact that the Tribunal did not accept the appellant’s claims did not mean that the decision of the Tribunal was unjust. The Tribunal found that the appellant was not a witness of truth and that his claims were not credible. These are decisions of fact for the Tribunal, open on the material before it.

14. This morning in Court the appellant claimed that he was confused at the Tribunal hearing and that the hearing was not properly conducted. However it is clear that, at the Tribunal hearing, the Tribunal recognised the appellant’s anxiety, and that the Tribunal adjourned the hearing at the appellant’s request and for his benefit (at [34]). In its decision the Tribunal noted the appellant’s anxiety but did not consider that he suffered a medical condition affecting his ability to participate in the proceedings (at [55]-[56]). In my view there is no basis for a claim of procedural irregularity in the conduct of the proceedings before the Tribunal.

15. Even were the Court to grant leave for the appellant to raise the new grounds in his notice of appeal, the appeal would be doomed to fail. In my view the appropriate order is that the appeal be dismissed with costs.

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

Associate:

Dated:        3 November 2010