SZRHD v Minister for Immigration and Citizenship

[2012] FCA 1364

FEDERAL COURT OF AUSTRALIA

SZRHD v Minister for Immigration and Citizenship

[2012] FCA 1364

Citation:	SZRHD v Minister for Immigration and Citizenship [2012] FCA 1364
Appeal from:	SZRHD v Minister for Immigration & Anor [2012] FMCA 751
Parties:	SZRHD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1350 of 2012
Judge:	RARES J
Date of judgment:	14 November 2012
Legislation:	Migration Act 1958 (Cth) s 424AA
Cases cited:	Coulton v Holcombe (1986) 162 CLR 1 applied Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 applied SZRHD v Minister for Immigration & Anor [2012] FMCA 751 referred to
Date of hearing:	14 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1350 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRHD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	14 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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 1350 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRHD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	14 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing constitutional writ relief against a decision of the Refugee Review Tribunal made on 15 December 2011 that affirmed the Minister’s delegate’s decision to refuse the appellant a protection visa:  SZRHD v Minister for Immigration & Anor [2012] FMCA 751.

   Background

2. The appellant and his wife arrived in Australia from India in March 2011 having obtained visitors visas for travel here.  On 18 May 2011, he lodged an application for a protection visa and his wife, who has subsequently left for India, lodged an application for protection as a member of his family unit.  The delegate refused those applications on 3 August 2011.  The appellant and his wife then sought review of those decisions in the Tribunal.  The Tribunal affirmed the delegate’s decision not to grant protection visas to either the appellant or his wife.  On 22 March 2012, the appellant commenced the proceedings below.

   The appellant’s claims

3. Essentially, the appellant claimed that he became a member of the Indian National Lok Dal Party, known as “INLD”, from the time he was 18 years of age, because he agreed with its policies.  He claimed that he became involved in various activities to help increase the party’s popularity within his community, including actively supporting its candidate in the 2009 election.  He claimed to have given that support, by among other things, talking to his family and friends about the candidate and travelling with other volunteers to local villages to prepare for the candidate’s visits.  He claimed that those activities gave him a political profile which made him known to members of the Congress Party.

4. The appellant claimed that during his campaigning he had been warned by Congress Party cadres to stop campaigning but that he had refused to accede to this demand.  He claimed that some time in a morning during October 2010, he was dragged to the local Congress Party leader’s office by three or four men where his life was threatened if he continued his support for the INLD Party.  He claimed that after that incident he had been approached by the Congress Party leader who asked him to change his allegiance and work for the Congress Party.  He also claimed that he had refused to join the Congress Party and started to campaign vigorously against its corrupt leaders.  He claimed that “Congress thugs threatened [his] family members and attacked [him]”. He claimed that three to four months after the election, which his party lost, his party’s leader warned him of the gravity of his situation and told him that he should leave the country as soon as possible “to escape political conspiracy and implicating [him] in a false case”.

5. The delegate did not accept that the appellant had come to the adverse attention of members and leaders of the Congress Party and did not accept his claims.

   The proceedings in the Tribunal

6. The appellant gave evidence to the Tribunal.  During the course of the hearing, the Tribunal referred to a copy of a letter dated 9 May 2011 that appeared to have been written by a person in the INLD.  The letter had been dated about two months after the appellant and his wife had arrived in Australia.  The Tribunal had earlier requested the appellant to provide an original of the letter, which he did at the hearing.  The Tribunal asked him why there was no official seal on the letter and he responded that he would obtain a sealed copy.  The Tribunal expressed some concerns about the genuineness of the letter and the ease with which the appellant might have obtained the party letterhead.  The Tribunal told the appellant that he could provide it with a sealed original of the letter at any time before it handed down its decision, but he did not do so.  The Tribunal concluded that, having regard to its other concerns about the appellant’s evidence, the letter should be given no weight.  Indeed, it found that the appellant had not been truthful and had fabricated his evidence for the purpose of his protection visa application.

7. The Tribunal also gave information to the appellant at the hearing pursuant to s 424AA of the Migration Act 1958 (Cth) in respect of information he had provided in his visitor visa application about which he did not appear to be aware, as well as information about his inconsistent evidence when he was interviewed by the delegate concerning his alleged kidnapping. The Tribunal told the appellant that he could respond to those items of information orally or in writing and he could also request an adjournment. The appellant said that he would respond in writing, but despite the Tribunal having given him a week to do so, he did not make any further comments or response. The Tribunal also put country information to the appellant that appeared to be inconsistent with his evidence.

8. The Tribunal rejected the appellant’s claims that he was under some mental impairment in giving any evidence.  It concluded that he had never been, and that there was no real chance in the future he would be, of any adverse interest to Congress Party members or anyone else because of his actual or perceived political opinion.  The Tribunal rejected the entirety of the appellant’s evidence in respect of the harm he claimed to have suffered.  It then turned to consider whether he could relocate within India.  The Tribunal found that the appellant did not have a national reputation or significant profile and would be of no interest to Congress Party members or supporters outside of his local area, even if his claims, that it had rejected, had been true.  The Tribunal found that the harm the appellant claimed to fear was localised, that it would be reasonable for him to relocate and that if he did so there was no real chance that he had would suffer anything giving rise to a well founded fear of persecution.  It found that by moving to another area, he could avoid any harm he claimed to fear and that there was no real chance that he would be persecuted for a Convention reason or combination of reasons if he were to return to India now or in the reasonably foreseeable future.  Accordingly, it affirmed the delegate’s decision to refuse him a protection visa.

   The proceedings before the primary judge

9. The appellant advanced four grounds of appeal before her Honour, namely, that the Tribunal:

   ·had no jurisdiction to make the decision because it did not arrive at its reasonable satisfaction in accordance with the provisions of the Migration Act 1958 (Cth);

   ·ought to have held that he was a refugee on the basis that it failed to give him the benefit of the doubt where there was a possibility that his claims were plausible, as he asserted they were;

   ·constructively failed to exercise its jurisdiction because the documents he provided it corroborated his claims and the Tribunal was wrong to have placed no weight on them;

   ·failed to investigate his claims, especially the ground that he had a well founded fear of persecution in India and accordingly the Tribunal’s decision was affected by bias.

10. Her Honour dealt with each of those grounds in turn and rejected them.  The circumstances of the appellant’s claims to the Tribunal and his arguments below were comprehensively identified by her Honour in her reasons.  She found that the first ground was not supported by any particulars, evidence or submissions, oral or in writing, and that it disclosed no error capable of review.  As she said, the Tribunal’s decision record made clear that the Tribunal had explored his claims in detail with the appellant at the hearing and had given him an opportunity to deal with its concerns when giving his evidence.  In substance, the appellant simply disagreed with the findings and conclusions of the Tribunal and was seeking merits review.  As her Honour found, and I agree, that is not the function of the Court in conducting judicial review proceedings such as those before her Honour.  In my opinion her Honour was correct to dismiss the first ground for those reasons.

11. Her Honour found that the Tribunal had given the appellant the opportunity to deal with its concerns.  He had not identified what relevant documents he was referring to beyond his claim concerning the letter of 9 May 2011.  The trial judge found that it was open to the Tribunal to conclude that the appellant’s claims were not credible and that he had fabricated his evidence to support them.  I agree.  Accordingly, her Honour was correct to dismiss the second ground for the reasons that she gave.

12. As to the third ground, her Honour perceived that this was a further challenge to the way in which the Tribunal approached the 9 May 2011 letter.  As her Honour noted, the Tribunal had given the appellant the opportunity to provide an original sealed copy of the letter but he did not do so prior to it handing down its decision.  As her Honour found, correctly for these reasons, the Tribunal considered that letter but was not satisfied that it could place any weight on it as corroborative of the appellant’s claims.  She held that this finding was open to the Tribunal on the evidence and the material before it for the reasons it gave.  Accordingly, it was open to her Honour, and I consider it correct of her, to have dismissed the third ground.

13. As to the fourth ground, the appellant asserted to her Honour that he had asked the Tribunal to investigate his claims to see if he had been actively involved in the INLD party.  Her Honour noted that the decision record of the Tribunal suggested that no such request had been made.  The appellant had been informed by her Honour in an earlier directions hearing that he had the opportunity to put in evidence a transcript of the hearing before the Tribunal but he had not done so.  Her Honour thus accepted the Tribunal’s decision record as correctly reflecting the matters to which it referred as having taken place in the hearing.  As her Honour noted, there was no general obligation for the Tribunal to make inquiries in the course of its consideration of an application for review, nor was the Tribunal obliged to make the appellant’s case for him.  Her Honour said correctly that the duty imposed on the Tribunal by the Act is a duty to review, although it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review that could give rise to a jurisdictional error.  The trial judge found that the appellant’s was not such a case:  cf  Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25] per French CJ, Gummow, Hayne, Heydon. Crennan, Kiefel and Bell JJ. In my opinion, her Honour was correct to have so concluded.

14. Her Honour also rejected the allegation of bias as being unsupported by particulars, evidence or submissions.  She reviewed the Tribunal’s decision record and found that the allegation of bias was unsupportable.  I agree for the reasons her Honour gave.  Her Honour also considered whether the fourth ground could extend to an assertion that the Tribunal failed to analyse properly whether there was a real chance that the appellant might have a well founded fear of persecution were he to return to India in the future.  Her Honour noted that the Tribunal had comprehensively rejected his claims of past harm and was satisfied that he did not suffer any risk of harm in the future.  Last her Honour found that the Tribunal had considered whether the appellant could relocate within India and that there was no error discernible in its approach.  I agree for the reasons her Honour gave.

    This appeal

15. The grounds of appeal claimed that: 

    (1)her Honour failed to consider that the Tribunal had denied the appellant procedural fairness in reaching adverse conclusions that his claims were implausible because those conclusions were not obviously open on the known material;

    (2)her Honour had dismissed his case “without considering the legal and factual errors contained in the decision” of the Tribunal and that the Tribunal failed to investigate the appellant’s claims, especially his grounds for asserting that he had a well-founded fear of persecution in India. 

16. The grounds in the notice of appeal to this Court are again unsupported by any particulars.  The Minister argued that the first ground had not been put to her Honour and ought not be allowed to be raised here.

17. In Coulton v Holcombe (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ said:

    “To say that an appeal is by way of rehearing does not mean that the issues and evidence to be considered are at large.  It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

18. In my opinion, the attempt in the first ground of appeal to generalise the failure of the Tribunal to afford procedural fairness to the extent that it had not been raised below, should not be allowed.  The Tribunal was amply equipped to come to the adverse conclusions on the appellant’s credit that it did.  The new ground is simply an attempt to seek merits review of the Tribunal’s decision.  As the appellant said a number of times during the course of his submissions today, he was not satisfied with the Tribunal’s decision.  That however, by itself, does not give the Court jurisdiction to intervene.  I reject the first ground of appeal.

19. The second ground is without substance.  Her Honour gave careful consideration to the errors which the appellant raised in his application to the Federal Magistrates Court as is evident from her detailed reasons.  The third ground is again without any substance.  It simply seeks merits review or to impose obligation on the Tribunal that is beyond its legal obligations:  see SZIAI 259 ALR at 436 [25].

    Conclusion

20. For these reasons the appeal fails.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 December 2012