SZTII v Minister for Immigration and Border Protection

[2014] FCA 1212

FEDERAL COURT OF AUSTRALIA

SZTII v Minister for Immigration and Border Protection [2014] FCA 1212

Citation:	SZTII v Minister for Immigration and Border Protection [2014] FCA 1212
Appeal from:	SZTII v Minister for Immigration & Anor [2014] FCCA 1649
Parties:	SZTII v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 833 of 2014
Judge:	WIGNEY J
Date of judgment:	3 November 2014
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	3 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	39
Appellant:	In person with the assistance of an interpreter.
Solicitor for the First Respondent:	DLA Piper
Second Respondent:	The second respondent filed a submitting notice save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 833 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTII
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	3 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as 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 833 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTII
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	3 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

1. The appellant who, by reason of s 91X of the Migration Act 1958 (Cth) (the Act) is referred to in these proceedings by the pseudonym SZTII, is a national of India. He is an unsuccessful applicant for a protection visa under s 36 of the Act. Both the Minister for Immigration and Border Protection (the Minister), by his delegate, and the Refugee Review Tribunal (the Tribunal), on review, refused his visa application.  The appellant sought judicial review of the Tribunal’s adverse decision in the Federal Circuit Court.  The primary judge found that the appellant had not made out any ground of review and dismissed his application.  This is the appellant’s appeal from that decision. 

   BACKGROUND

2. The appellant arrived in Australia on a business short stay visa in January 2012.  He applied for a protection visa on 5 April 2012.  That application was refused by a delegate of the Minister on 11 September 2012.  The appellant then sought a review of the refusal decision in the Tribunal.  He gave oral evidence before the Tribunal and produced various documents.  On 6 September 2013 the Tribunal affirmed the initial refusal decision. 

3. Unfortunately for the appellant both the delegate and the Tribunal found that the appellant was not a truthful or a credible witness.  They rejected virtually all of his claims and evidence.  They were, accordingly, not satisfied that the appellant met all of the necessary criteria for the grant of a protection visa. 

4. In the circumstances it is unnecessary to recite in any great detail the claims and evidence that the appellant advanced in support of his visa and review applications.  Following is a brief summary. 

5. The appellant says that he is a Christian who originally lived in the town of Trivandrum in the southern Indian state of Kerala.  He lived with his wife in an area of Trivandrum called Cheriyathura.  He had a number of neighbours who were Muslims. 

6. According to the appellant he was initially on good terms with his Muslim neighbours.  This all apparently changed some time prior to 2008 when he began to give some of his Muslim neighbours copies of a Christian magazine.  This led some in the Muslim community to accuse the appellant of trying to convert Muslims to Christianity. 

7. Things turned nasty in early 2008 when, according to the appellant, some Muslims “manhandled” and threatened him.  He filed a police complaint.  The police warned him not to provide the magazine to Muslims, but apparently did little more. 

8. For a while it seems there were no further difficulties.  However, according to the appellant, he continued to secretly provide the magazine to some of his Muslim neighbours.  When this was apparently discovered in May 2009, a mob came to his house and destroyed it.  The appellant was not home at the time.  The mob then went to the appellant’s parish church and tried to destroy it.  The police arrived on the scene, but when the Muslim mob failed to disperse, the appellant says the police opened fire and killed six people and injured many others. 

9. The appellant himself did not witness this incident near the church because he was apparently at a wedding.  However once he became aware of it he took shelter in a friend’s house in Cochin, which is a larger city in Kerala some few hundred kilometres from Trivandrum.  It seems he resided there without incident for some time.  According to the appellant, however, some two years later some Muslims supposedly heard that he was living in Cochin and came looking for him.  They attempted to assault a friend and demanded to know where the appellant was.  The appellant then realised it was not safe for him in Cochin and arrangements were made for him to migrate to Australia.  He obtained a visa in November 2011, but his departure for Australia was delayed for about two months by his mother’s death. 

10. The appellant first travelled to Australia in January 2012.  Initially he did not stay long.  After a week he returned to India and remained there for about a month.  He says that whilst back in India he was assaulted by two people.  He was stabbed and punched and had to go to hospital.  It is unclear who the appellant’s assailants were, or if this incident was related in any way to the incidents involving Muslims that had occurred previously.  In any event, apparently as a result of this attack, the appellant returned to Australia. 

11. The appellant claims that if he has to return to India he will be killed by Muslim people.  He says that the “United Democratic front, a Moslem league” is a powerful political party in Kerala, so Muslims are protected by the Government. 

    THE TRIBUNAL’S DECISION

12. As already indicated, the appellant gave evidence before the Tribunal and submitted some documents in support of his case.  The Tribunal did not, however, find his evidence to be credible.  It effectively rejected all of the appellant’s evidence concerning his involvement with his Muslim neighbours, the threats and harm he says he suffered in India at the hands of Muslims, and most importantly his connection with the riot in Cheriyathura. 

13. The appellant provided the Tribunal with a number of media articles concerning a riot that occurred in the Cheriyathura area in May 2009.  The Tribunal accepted that this riot occurred.  The difficulty for the appellant, however, was that none of the articles referred to him.    The Tribunal considered, but rejected, the appellant’s explanation for why the articles made no mention of him.  The Tribunal also found that in any event the information concerning the riot in the articles was inconsistent with the appellant’s account.

14. The Tribunal also found that other documents provided by the appellant in support of his claims did not in fact support or corroborate his evidence.  One document, which appeared to be a police complaint concerning a property damage claim, did not name the appellant.  In any event, its details were not consistent with the appellant’s evidence concerning the incident when his house was allegedly destroyed.  The Tribunal notes in its reasons that the appellant was unable to explain this inconsistency.  It accordingly gave the document little weight. 

15. The Tribunal reasoned that because it did not believe the appellant in relation to the key or central plank to his claims, being his role in causing the May 2009 riots in the Cheriyathura area, it did not believe any of his evidence concerning his situation in India.  It ultimately rejected all of the appellant’s evidence about suffering harm in the past in India.  It found that the appellant’s evidence was not credible.  As a result, the Tribunal was not satisfied that there was any threat to the appellant if he returned to India, was not satisfied that the appellant had a well-founded fear of persecution if he returns to India, and was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the appellant will suffer significant harm.  It followed that the appellant did not satisfy the key criteria for the grant of a protection visa. 

    THE FEDERAL CIRCUIT COURT PROCEEDINGS AND JUDGMENT

16. The appellant’s application to the Federal Circuit Court contained the following four grounds:

    1.The Tribunal constructively failed to exercise its jurisdiction;

    Particulars:
    The applicant provided documents to the Tribunal to corroborate his 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 his claims.

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

    3.The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslims.

    4.The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

17. The primary judge considered, but rejected, each of these four grounds.  His Honour found that the appellant did not make out any of these grounds and did not satisfy him that the Tribunal had made any jurisdictional error. 

18. In relation to the first ground, the primary judge rejected the appellant’s submission that the Tribunal failed to exercise its jurisdiction because it failed to consider the documents relied on by the appellant.  The primary judge found that the Tribunal considered the documents, but found that they did not support the appellant’s claims and evidence.  The primary judge concluded that this finding was open to the Tribunal on the material before it and involved no error. 

19. Ground 2 is in broad terms, and contains no particulars of the basis of the appellant’s assertion that the Tribunal’s decision was not arrived at in accordance with the Act. It does not appear that the appellant made any meaningful submissions in support of this ground in the Federal Circuit Court. The primary judge rejected it on the basis that it is clear from the Tribunal’s reasons that the Tribunal considered all of the appellant’s claims and that its conclusions in relation to them were reasonably open.

20. Ground 3 is in similarly broad and unparticularised terms.  Again, it appears that the appellant made no meaningful submissions in support of this ground in the Federal Circuit Court.  To the extent that the ground complains that the Tribunal did not consider the appellant’s claims, the primary judge rejected that contention.  His Honour noted that the Tribunal considered but rejected the appellant’s evidence that he was under any pressure from Muslims. 

21. In relation to the fourth ground, the primary judge rejected the appellant’s contention that the Tribunal denied him procedural fairness.  His Honour found that the appellant was on notice that his claims and evidence would be in issue before the Tribunal because the delegate had earlier comprehensively rejected the appellant’s claims and evidence.  The conclusions ultimately reached by the Tribunal were therefore obviously or reasonably open on the material and the appellant had a fair opportunity to be heard in relation to these matters. 

22. It would appear from the primary judge’s reasons that the appellant made oral submissions at the hearing in the Federal Circuit Court that did not directly address, or engage with, his grounds of review.  These submissions appeared to amount to nothing more than criticisms of factual findings made by the Tribunal and the weight given by the Tribunal to some evidence or documents relied on by the appellant.  The primary judge rejected these submissions.  His Honour found that the weight to be given to the evidence was entirely a matter for the Tribunal and its findings were reasonably open to it on the evidence.

    APPEAL GROUNDS AND SUBMISSIONS

23. The appellant advances the following two grounds of appeal:

    1.The honorable judge failed to consider that the Refugee Review Tribunal exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision. 

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

24. Regrettably, these grounds are so broad and vague as to be largely meaningless.  The appellant filed no written submissions.  His oral submissions did not greatly assist in explaining these grounds. 

25. This is not intended as a criticism of the appellant.  He has no legal representation and English is not his first language.  The difficulties that he faces in presenting his case are understood and acknowledged.  Nevertheless, it is for him to make out a proper basis for his appeal. 

    Has the appellant demonstrated any appealable error?

26. In relation to the first ground of appeal, there is no doubt that the primary judge gave consideration to the issue whether the Tribunal made any jurisdictional error in arriving at its decision.  His Honour found that the Tribunal did not make any jurisdictional error.  He considered but rejected all the appellant’s grounds and submissions.  His Honour was correct to do so.  The appellant has failed to identify, let alone make out, any error in his Honour’s reasoning or conclusions. 

27. In relation to ground 2 of the appeal, it is correct that the primary judge dismissed the appellant’s case and accordingly found that there were no legal errors in the Tribunal’s decision.  Again, however, his Honour was correct to do so.  His Honour was correct to reject the appellant’s grounds of review and submissions for the reasons given.  The appellant has again failed to identify, let alone make out, any error on the part of the primary judge.

28. The appellant’s oral submissions in support of his appeal may fairly be characterised as amounting to no more than a complaint about the Tribunal not accepting factual aspects of his claims. 

29. In particular, in his oral submissions the appellant pointed to some documents that he submits supported his claims, but were given limited weight by the Tribunal.  One document the appellant relies on in this regard is a document which, in the appellant’s submission, shows that the government paid some compensation in respect of damage to his house.  He says that it therefore corroborates his claim that his house was destroyed by a Muslim mob.  The appellant submits that the Tribunal was accordingly wrong to reject his evidence in relation to this incident. 

30. There are three short answers to this submission.  First, it is doubtful that the document relied on by the appellant in fact demonstrates that he received compensation for damage to his house.  It is accordingly doubtful that it corroborates his evidence.  Second, whilst the Tribunal’s reasons do not expressly refer to this document, they do deal with other documents relied on by the appellant in relation to this aspect of his case.  The Tribunal found, for the reasons given at paragraph 36 of its reasons, that little weight should be given to those documents.  The weight to be given to evidence is a matter for the Tribunal.  Third, and most fundamentally, even if the appellant’s submissions in relation to this document had any merit, at most they might demonstrate an error of fact on the part of the Tribunal.  Such an error would not constitute a jurisdictional error.

31. Another document referred to by the appellant in his oral submissions is a handwritten document headed “Progress Notes”.  This document appears to be a record of various statements made by the appellant to doctors or nurses after he lodged his protection visa application.  The Tribunal dealt with this document at paragraph 40 of its reasons.  It gave little weight to the document for the reasons given.  This finding was entirely a matter for the Tribunal.  It was a finding that was open to it.  

32. A final document referred to by the appellant appears to be some form of complaint put before a magistrate relating to the death of six people.  This complaint presumably relates to the six people who died during the riots in Cheriyathura.  The Tribunal does not expressly refer to this document in its reasons.  It did not need to.  That is because the Tribunal accepted that the riot in Cheriyathura occurred.  It simply rejected the appellant’s claims and evidence concerning his role in, or in connection with, the riot.  The document referred to by the appellant in his submissions does not mention the appellant and therefore does not advance the appellant’s case in any material way.

33. The appellant also pointed to one sentence of the Tribunal’s reasons, the last sentence at paragraph 38, which he said incorrectly recorded one of his claims.  In fact, this sentence records the Tribunal’s rejection of various aspects of the appellant’s evidence.  On a fair reading it does not incorrectly record the appellant’s evidence.  There is no such error in the Tribunal’s reasons.

34. The appellant also pointed to a sentence in the Minister’s written submissions which summarised the appellant’s claims (paragraph 6.1 of the Minister’s submissions).  The appellant submitted that there was an error in this paragraph.  He says that he did not claim, as suggested in this paragraph, that the church was destroyed, only that the Muslim mob attempted to destroy it.  Even if there is an error in this paragraph of the Minister’s submissions it does not demonstrate any error on the part of the Tribunal or the primary judge.  Paragraph 23 of the Tribunal’s reasons correctly records this aspect of the appellant’s case. 

35. In the end, none of the submissions advanced by the appellant demonstrate error on the part of the Tribunal, nor do they indicate any error on the part of the primary judge in dismissing the appellant’s judicial review application. 

36. Putting aside the appellant’s grounds and submissions, both in the Federal Circuit Court and on appeal, a fair reading of the Tribunal’s decision reveals no relevant error on the part of the Tribunal. The Tribunal’s decision turned entirely on factual findings, findings relating to the credibility of the appellant’s evidence and findings relating to the weight to be given to various documents relied on by the appellant. Findings concerning facts, credibility and the weight to be given to evidence are largely matters for the Tribunal. Findings of this sort cannot be challenged in review proceedings in the Federal Circuit Court, or on appeal in this Court, unless those findings reveal legal error that goes to the exercise of the Tribunal’s jurisdiction under the Act.

1. That is not the case here.  The findings made by the Tribunal were reasonably open to it on the material before it.  Its reasons are legally logical and rational.  The primary judge was correct to find no jurisdictional error on the part of the Tribunal. 

   CONCLUSION AND DISPOSITION

2. No error on the part of either the Tribunal or the primary judge has been demonstrated.  The appeal must be dismissed.

3. No reasons have been advanced for why costs should not follow the event.  Accordingly, the appropriate orders are that the appeal is dismissed and the appellant pay the Minister’s costs as agreed or taxed. 

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:       14 November 2014