SZTBG v Minister for Immigration and Border Protection

[2014] FCA 1272

FEDERAL COURT OF AUSTRALIA

SZTBG v Minister for Immigration and Border Protection [2014] FCA 1272

Citation:	SZTBG v Minister for Immigration and Border Protection [2014] FCA 1272
Appeal from:	SZTBG v Minister for Immigration and Border Protection & Anor [2014] FCCA 1468
Parties:	SZTBG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 775 of 2014
Judge(s):	YATES J
Date of judgment:	28 November 2014
Catchwords:	MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Cases cited:	SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 Allesch v Maunz (2000) 203 CLR 172
Date of hearing:	7 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	24
The Appellant:	In person
Solicitor for the Respondents:	Ms M Stone of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 775 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTBG
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	28 NOVEMBER 2014
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 775 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTBG
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	28 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant a Protection (Class XA) visa to the appellant.

   Background

2. The appellant’s application for a protection visa was based on the claim that his life would be in danger should he return to India.  According to the appellant, this danger was posed by supporters of the Congress Party and arose because of the appellant’s role in an opposing political party – the Indian National Lok Dal Party (the INLD), formerly the Smajwadi Janata Party in the Karnal District in Haryana.  He claims that supporters of the Congress Party attacked him on a number of occasions and threatened to kill him.  His claim to protection was, therefore, based on his fear of persecution by reason of his political opinion.

   The Tribunal’s decision

3. The Tribunal rejected the appellant’s claim substantially for the reason that it did not accept him to be a credible witness.  At [110]-[118], the Tribunal gave detailed reasons for coming to this conclusion.  Ultimately, the Tribunal was not satisfied that:

   ·the appellant had been involved in political activities for the INLD or its predecessor in India, or that he was attacked, threatened, harmed, searched for, arrested or imprisoned because of his political activities in India as claimed;

   ·the appellant had to hide in India and travel overseas since 2006 for those reasons, as claimed;

   ·the appellant would be involved in political activities for the INLD or otherwise, if he returned to India, and

   ·in the reasonably foreseeable future, the appellant would be attacked, threatened, harmed, searched for, arrested, imprisoned or killed because of his political activities, if he returned to India.

4. The Tribunal was not satisfied that there was a real chance that, if he returned to India, the appellant would suffer serious harm in the reasonably foreseeable future or that, consequently, the appellant had a well-founded fear of persecution for a Convention reason.  The Tribunal concluded that the appellant was not a person in respect of whom Australia has protection obligations under the Refugee Convention. 

   The Federal Circuit Court’s judgment

5. In his application for judicial review filed in the Federal Circuit Court on 15 July 2013, the appellant raised the following grounds:

   1.The member of the Refugee Review Tribunal did not consider the corroborative evidences which I have provided.  In paragraph 118 the Tribunal states, “the identity card shows no date of issue or expiry.  The letter of his appointment as officer-in-charge or media is dated 1999.  They are of little evidentiary value.”

   2.The Tribunal member has failed to consider my job duties of an officer-in-charge of media.

   3.The decision of the Refugee Review Tribunal is arbitrary, capricious, irrational and illogical.

   4.The Tribunal has made a statement in paragraph on my behalf stating in paragraph 120 that, “he will (not) be involved in political activities for the INLD or otherwise if he returns to India”.  The Tribunal goes into this extent of forecasting and declares that, “The Tribunal is not satisfied that, in the reasonably foreseeable future, the applicant will be attacked, threatened or harmed or searched for or arrested or imprisoned or killed because of his political activities if he returns to India”.  Such statements by the Tribunal are merely arbitrary and the member is not aware of the political environment of my country. 

6. The primary judge rejected each of these grounds.

7. As to the first ground – that the Tribunal did not consider the appellant’s corroborative evidence – the primary judge found that, in fact, this evidence was considered by the Tribunal.  However, the Tribunal found the evidence to be of little weight.  The primary judge found that the Tribunal’s findings concerning the weight of the corroborative evidence were open to it, including when assessed against the background of the adverse credit findings it had made.  The primary judge observed that the Tribunal was not required to accept uncritically the appellant’s claims and that the Tribunal did not need rebutting evidence before holding that a particular assertion was not made out:  see at [49]-[56].

8. As to the second ground – that the Tribunal failed to consider the appellant’s duties as officer-in-charge of media with the INLD – the primary judge found that, in fact, the Tribunal explored that claim in some detail.  However, once again, the Tribunal placed little weight on this evidence, for the reasons it gave:  see at [57]-[60]. 

9. As to the third ground – that the Tribunal’s decision was “arbitrary, capricious, irrational and illogical” – the primary judge noted that this allegation was wholly unparticularised.  The primary judge found that a fair reading of the Tribunal’s decision record did not support this allegation.  The primary judge also considered a submission made by the appellant concerning the quality of interpretation at the Tribunal hearing, and rejected that complaint.  Further, the primary judge also rejected a submission made by the appellant to the effect that the Tribunal did not take into account the “general threat” posed to him by “a certain political party”.  The appellant also claimed that he could provide documents to prove his detention in 1995.  The primary judge observed that the appellant had not taken steps to place that evidence before the Tribunal.  Additionally, the primary judge noted that the remainder of the appellant’s submissions on this ground simply cavilled with the Tribunal’s findings of fact:  see at [61]-[70].

10. As to the fourth ground – that the Tribunal’s finding that the appellant would not be involved in political activities for the INLD if he returned to India, was “merely arbitrary” – the primary judge found that the Tribunal’s finding was open to it on the evidence before it, and for the reasons the Tribunal gave, which included its adverse credit findings regarding the appellant:  see at [71]-[73].

11. The primary judge concluded (at [74]-[75]):      

    74.A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored  those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

    75.The RRT then made findings based on the evidence and material before it.  Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave.  A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

    The appeal in this Court

12. The grounds of appeal, as set out in the appellant’s notice of appeal filed on 29 July 2014, are:

    1.The Federal Circuit Court of Australia did not take into consideration relevant evidence presented by the appellant to be considered for the grant of his protection visa.

    2.The Federal Circuit Court of Australia erred in not taking into consideration evidence relevant to the appellant’s case and as a result the appellant suffered injustice.

13. On 3 November 2014, the appellant filed an affidavit (affirmed 29 October 2014) which purported to annex a copy of the Tribunal’s decision but which, in fact, annexed a written outline of submissions dated 27 October 2014 (the appellant’s outline of submissions). 

14. The appellant’s grounds of appeal appear to be based on a fundamental misconception of the role of the Federal Circuit Court when undertaking judicial review of the Tribunal’s decision.  Plainly, the task of the Federal Circuit Court is to consider whether the Tribunal’s decision is affected by jurisdictional error, not to reconsider the evidence before the Tribunal.

15. The appellant’s outline of submissions in this appeal also reveals that he has misunderstood the task of this Court.  The task of this Court is to determine, on proper grounds brought forward by the appellant, whether there is error in the judgment from which the appeal is brought:  SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11], citing Allesch v Maunz (2000) 203 CLR 172 at [22]. The task of the Court is not to re-evaluate the evidence before the Tribunal and come to an independent view of the facts. This is, however, what the appellant asks on this appeal. He asks the Court “to re-evaluate my circumstances and afford me the natural justice that the RRT failed to afford me”. In his submissions, he challenges the findings of fact made by the Tribunal, including its finding that the appellant was not a credible witness.

16. The appellant appeared at the hearing of this appeal unrepresented, but assisted by an interpreter, as he had been before the Federal Circuit Court.  When asked to elaborate on his grounds of appeal, the appellant relied on his outline of submissions. 

17. The appellant asked for an adjournment to obtain legal advice on the Minister’s written outline of submissions (the Minister’s outline of submissions).  I declined that adjournment, for the following reasons.

18. First, the Minister’s outline of submissions was served on the appellant in accordance with the Court’s orders made on 30 July 2014.  The appellant accepted that he received the submissions on 27 October 2014.  This was well before the date required for service. 

19. Secondly, no explanation was provided by the appellant for not obtaining legal advice in respect of the Minister’s outline of submissions at the time that it was served on him.  I can only conclude that, having had the Minister’s submissions for nearly two weeks, the appellant simply took no steps to obtain the legal advice he now seeks.

20. Thirdly, the appellant did inform the Court that he had tried to obtain legal representation for the appeal but could not afford it.  These steps were apparently undertaken independently of the service of the Minister’s submissions.  In those circumstances, it is difficult to understand how, as a practical matter, the appellant could now obtain, in a timely way, the legal advice he now seeks. 

21. Fourthly, the gravamen of the Minister’s outline of submissions, as explained to the appellant at the hearing of the appeal, is that his grounds of appeal proceed on the erroneous basis to which I have referred at [14]-[15].  Competent legal advice could only confirm that position.

22. I have considered the primary judge’s reasons.  Her Honour carefully set out the appellant’s claim, accurately summarised the Tribunal’s significant findings, and gave detailed consideration to the appellant’s grounds of review.  I can discern no appealable error in her Honour’s judgment. 

23. I have also considered the Tribunal’s reasons.  I respectfully agree with the primary judge’s conclusion that the Tribunal’s decision is not affected by jurisdictional error.

    Disposition

24. In these circumstances, the appeal should be dismissed with costs. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        28 November 2014