SZRJO v Minister for Immigration and Citizenship

[2013] FCA 179

FEDERAL COURT OF AUSTRALIA

SZRJO v Minister for Immigration and Citizenship [2013] FCA 179

Citation:		SZRJO v Minister for Immigration and Citizenship [2013] FCA 179
Appeal from:		SZRJO & Anor v Minister for Immigration & Anor [2012] FMCA 1148
Parties:		SZRJO and SZRJP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 2155 of 2012
Judge:		COLLIER J
Date of judgment:		6 March 2013
Legislation:		Migration Act 1958 (Cth) s 424A
Date of hearing:	5 March 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	26
Counsel for the First and Second Appellants:	The Appellants appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Ms E Baggett of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2155 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRJO
First Appellant

SZRJP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	6 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs, fixed in the amount of $3,500.00.

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 2155 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRJO
First Appellant

SZRJP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	6 MARCH 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court delivered on 3 December 2012, in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2. The appellants are citizens of India who arrived in Australia on 29 November 2010. On 3 December 2010 the appellants applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 20 October 2011.

3. On 8 November 2011, the appellants sought a review in the Tribunal of the delegate’s decision. The Tribunal affirmed the decision of the delegate on 21 March 2012.

   Background

4. The first appellant (hereafter “appellant”) is the wife of the second appellant. Although the appellant stated before the delegate that her husband also had claims of his own, the appellant’s husband did not appear at the Tribunal. Accordingly, the appellant’s husband was assessed as a member of the appellant’s family unit.

5. The appellant claimed that she was a Christian of the Latin Catholic faith, and a leader of a Christian group called the Basic Christian Community (“BCC”). She has two children who remain in India, as does her mother. It appears that she also has worked for the Kerala Catholic Youth Movement (“KCYM”).

6. In the Tribunal the appellant stated that she feared persecution from Muslim fundamentalists who had targeted her to kill her. She said she was the main target of the Muslim and Christian clashes on 16 and 17 May 2009, and that she was beaten and hospitalised for two weeks. She claims that six Muslims were killed in the clashes, and that she feared “revenge” attacks against her. The appellant said that the Muslim fundamentalists targeting her have deeply rooted relationships and underworld networks in India, which means that relocation within India is not feasible.

7. The appellant said that her husband had also received threats because of his relationship with her, that they had moved to Mumbai where she had temporary protection, and that she had reached Australia with her husband on 29 November 2010.

8. On 21 February 2012, prior to the hearing, the Tribunal wrote to the appellant and her husband, pursuant to s 424A of the Migration Act 1958 (Cth) inviting them to comment on or respond to certain information which the Tribunal considered would be a reason or part of the reason for affirming the decision under review. This included information about the home address in India provided by the appellant and requests to the appellant to provide evidence of her position with the BCC and KCYM, hospital records for May 2009 and evidence of her residency in Bombay. The appellant did not respond to the letter.

9. At the hearing, the appellant provided to the Tribunal a statement from the District Congress Committee, a statement from the KCYM and a statement from “a local councillor, Mr Tony Oliver”.

10. Following the hearing the appellant requested further time to provide more evidence. The Tribunal declined that request. The Tribunal further noted that it had requested the appellant to provide more evidence in its letter of 21 February 2012, but the appellant had failed to provide those documents. The Tribunal also noted that the appellant had lodged her visa application 15 months prior to the hearing and that she had not provided the documents within those 15 months.

11. The Tribunal formed the view that the appellant entirely lacked credibility on the following grounds:

    ·the appellant did not hold a unique profile in the Christian community in Kerala;

    ·there was no mention of her in media reports in relation to the clashes;

    ·the statements from the KCYM and the District Congress Committee made no mention of the events of May 2009 or subsequent persecution of the appellant;

    ·the letter from Tony Oliver, which was the only one that referred to the events of May 2009, was undated and bore no contact details, making it impossible to verify its provenance;

    ·the appellant gave inconsistent evidence about her residence in India;

    ·the appellant failed to raise in her written application the significant claim that on 6 December 2009 someone came searching for her in Bombay and she was located;

    ·the appellant failed to raise in any of her submissions made prior to the Tribunal hearing the claim that there was a “holy war” against her and that Muslim extremists would kill her no matter where she goes;

    ·aspects of the appellant’s claims were contradictory, implausible or inconsistent with country information;

    ·although claims were made that the second appellant had also experienced threats and harm, he did not appear at the hearing; and

    ·the Tribunal were not satisfied that the second appellant was mentally ill.

12. Accordingly, the Tribunal formed the view that the appellant had fabricated her claims for the purpose of obtaining a protection visa.

    The proceeding before the Federal Magistrate

13. In their amended application, the appellants relied upon the following grounds:

    1.        The Tribunal constructively failed to exercise its jurisdiction;

    Particulars:
    The applicant provided documents to the Tribunal to corroborate her claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated her claims.

    2.The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

    a.it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.

    3.The Tribunal has failed to investigate the claim, specifically on the grounds of persecution in India. Therefore, the Tribunal’s decision dated 22 March 2012 was affected by actual bias constituting judicial error.

    Therefore the applicant submits that the Tribunal failed to analyse properly the ‘future harm’ the applicant may face if she has to go back to India.
    Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

14. Her Honour held that the first ground of review was not substantiated as it was for the Tribunal to determine the weight which should be given to the evidence and material before it. Her Honour noted that the Tribunal did consider the documents provided and accepted the authenticity of the letter from the KCYM. Her Honour found that it was open to the Tribunal to give the Tony Oliver letter no weight, for the reasons it gave.

15. In relation to the second ground of review her Honour noted that it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, nor is the Tribunal required to have rebutting evidence before rejecting a particular claim. Her Honour found that on a fair reading of the decision, it could not be suggested that the Tribunal had any reasonable doubt about its findings and conclusions. Consequently it was not necessary for the Tribunal to consider the possibility that its findings were wrong.

16. In respect of the third ground of review, her Honour held that the Tribunal was not under a general obligation to investigate the appellant’s claims. Further the claim of actual bias on part of the Tribunal was not supported by the evidence. In respect of the claim that the Tribunal failed to assess future harm, her Honour saw that the Tribunal specifically considered country information which provided that Christians and Muslims generally co-exist peacefully in Kerala, and further that the finding made by the Tribunal was a comprehensive rejection of the claims as fabricated. Her Honour held that those findings were open to the Tribunal based on the evidence and material before it.

17. The application was dismissed with costs.

    The Appeal

18. The appellants’ notice of appeal set out the following grounds:

    1.The FM failed to consider that the Tribunal and the delegate of the respondent had not dealt with any substantive way, a key component of my claim that my life will be under threat on out return back to India. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or lack of procedural fairness.

    2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

19. The first ground of review cannot, in my view, be substantiated.

20. First, it is in any event clear that the decision of the Minister’s delegate has been superseded by the decision of the Tribunal, which heard the matter afresh on its merits.

21. Second, consideration of the judgment of the Federal Magistrate indicates clearly that the Federal Magistrate did look to whether the Tribunal had, in a substantive manner, dealt with the appellant’s claim that her life would be under threat should she return to India. Paragraphs [4], [7], [43], [59]-[68] of the judgment below are instances of examination by the Federal Magistrate of this aspect of the claim. In summary, however, the Federal Magistrate concluded that the Tribunal had simply not accepted the appellant’s claims concerning threats to her life.

22. It is also clear that the Tribunal had examined in detail the appellant’s claims concerning the attacks on her and threats to her life. It appears that the Tribunal had questioned the appellant closely in relation to such matters as the incident in which she was attacked and her subsequent hospitalisation, threats against her in Mumbai, moving within India prior to leaving the country, and her claim that a “holy war” had been declared against her. It is also clear that the Tribunal had noted the large Christian population in Kerala where the appellant had lived. Indeed, the entire substance of the Tribunal’s reasons relate to the appellant’s claims of threats to her life.

23. I can identify no absence of procedural fairness in relation to the appellant’s case.

24. The second ground of appeal seems to presuppose legal and factual errors in the Tribunal’s decision without identifying any. In the absence of particularisation this ground of appeal does not support any disturbance of her Honour’s judgment.

25. In conclusion, the appellant’s fundamental complaint appears to be that the Tribunal did not believe her claims notwithstanding the appellant’s contentions before the Tribunal that she could do no more to prove her case. As I explained to the appellant at the commencement of the hearing however, the Tribunal is the arbiter of fact in such cases. In the absence of an error going to the jurisdiction of the Tribunal, neither this Court nor the Federal Magistrates Court is empowered to intervene in respect of a Tribunal decision.

26. The appeal should be dismissed with costs fixed in the amount of $3,500.00.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       6 March 2013