SZCBB v Minister for Immigration and Citizenship [2007] FCA 1146

FEDERAL COURT OF AUSTRALIA

SZCBB v Minister for Immigration and Citizenship [2007] FCA 1146 SZCBB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 588 OF 2007

LINDGREN J

30 JULY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 588 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCBB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 30 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 3. The costs referred to in Order 2 above be fixed at the sum of $2,800.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 588 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCBB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 30 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 23 March 2007: SZCBB v Minister for Immigration & Anor [2007] FMC 539. The Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) that was given on 10 October 2006 and handed down on 31 October 2006. The Tribunal affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) not to grant the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of India. He arrived in Australia on 1 March 2002 and applied for the Protection visa on 27 March 2002. 3 The appellant's initial claims for protection were set out in his visa application, and, in particular, in extended answers that he gave to certain questions in the Form 866C and in an accompanying statutory declaration dated 26 March 2002. 4 In general terms, the appellant claimed that he feared persecution by the Indian police and governmental authorities arising from his political involvement on behalf of Muslims in the State of Tamil Nadu from 1985. He claimed that he and his family had to flee their home (which was destroyed twice), that he had been arrested, detained and tortured four times, and that he had been questioned by police on a further ten occasions. 5 There was an earlier application for review of the Delegate's decision. The Tribunal's decision affirming that decision was set aside by order of this Court on 10 May 2006 and remitted to the Tribunal for determination according to law. It is the second decision of the Tribunal, constituted by a different member, that was the subject of the application for review to the Federal Magistrates Court with which I am concerned. 6 By letter dated 21 July 2006, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). There was a lengthy attachment to that letter in which the Tribunal set out a number of issues concerning the appellant's evidence before the previous Tribunal, as compared to the claims he had made to the Delegate. In particular, at the earlier hearing the appellant had said that much of what was contained in the statutory declaration that accompanied his application for the protection visa was not true, had denied that he had been arrested, detained, interrogated or tortured by police, and said that he had not been involved in any Muslim organisation and was only involved in his own family matters. These and other concerns were taken up with the appellant by the Tribunal in its s 424A letter. 7 By letter dated 24 July 2006, the appellant responded, repeating claims that he had made in his original visa application. 8 In its reasons for decision, the Tribunal set out at some length the claims that the appellant had made in his visa application, to the previous Tribunal, and in his response to the s 424A letter. 9 A particular claim that the appellant had made to the earlier Tribunal concerned communal riots and violence in the city of Adirampattinam in which a Hindu woman had died in a house fire, resulting in the arrest in September 2001 of the appellant's brother. The claim was that the brother had been tortured and released in October 2001. The appellant claimed that as a result of this incident, the police had sought to question him (the appellant). 10 In the "Findings and Reasons" section of its Reasons for Decision, the Tribunal found that the appellant was not a witness of truth in relation to the claim concerning his brother's actions in 2001. The Tribunal did accept that the brother had been detained for reason of the 2001 house burning incident and released in October 2001, and that the appellant had been visited by the Indian authorities (the police) and by the family (the son or persons acting on behalf of the son) of the woman who had died as a result of the incident. The Tribunal did not accept, however, that the Indian authorities or anyone else was seeking the appellant on suspicion of his having assisted his brother. In addition, the Tribunal did not accept that the authorities or anyone else had continued to seek his brother, otherwise, according to the Tribunal, the brother would not have been released in October 2001. 11 The Tribunal's conclusion in relation to the incident in 2001 was that there was not a real chance of the appellant's being persecuted by reason of that incident. 12 In relation to the appellant's claim for protection based more generally on his Muslim faith, the Tribunal noted that the appellant had confirmed that he had no involvement with Muslim groups or organisations and had not been arrested or tortured by police. The Tribunal was not satisfied that there was a real chance of his being persecuted by reason of his Muslim faith. In addition the Tribunal thought that the making of this claim demonstrated that the appellant was not a witness of truth because it was made only in response to questioning by the Tribunal. 13 Generally, the Tribunal was satisfied that the appellant was willing to embellish or fabricate claims in order to enhance his claim for protection. The Tribunal rejected all of the appellant's "material claims". It did so on the basis that the Tribunal was satisfied that the appellant was not a witness of truth. 14 Before the Federal Magistrates Court, the appellant sought judicial review on seven grounds which were addressed in paras 13–21 of the learned Federal Magistrate's reasons for decision. Ground one alleged a failure to observe ss 424, 430, 439 and 440 of the Act. Ground two alleged a breach of the rules of natural justice and of s 476 of the Act. Ground three took issue with the Tribunal's failure to accept the appellant's evidence as to his fear of persecution. Ground four was a complaint that the Tribunal had failed to understand the motivation of his "persecutors". Ground five complained that the Tribunal ignored that the appellant was a member of "the Jihad Committee". Ground six was a complaint that the Tribunal had ignored relevant evidence and based its decision on assumptions. Ground seven alleged a lack of good faith in the Tribunal. 15 In addition to the seven grounds, the appellant made a number of other complaints in his written submissions. The Federal Magistrate dealt with those, one by one, in paras 22–38. 16 Many of the complaints made by the appellant before the Federal Magistrate were in the nature of a request for a review of the Tribunal's decision on the merits. Many were not particularised. In some cases, no evidence was pointed to in support of the complaint. 17 The Federal Magistrate found none of the complaints substantiated and dismissed the application. 18 The grounds of appeal to this Court are stated in the notice of appeal as follows (it will be noted that there is no ground numbered six): 2. The single Judge of the Federal Magistrates Court in his Honour's judgment delivered on the 23 March 2007 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the Judiciary Act 1903 (Cth). 3. The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). 4. Recent High Court judgment: Plaintiff S157/2002 Commonwealth of Australia [2003] HCA 1 [sic – (2003) 211 CLR 476; [2003] HCA 2]. 5. I will provide more ground after received the judgment. 7. Tribunal made his decision in bad faith. I was prosecuted because of my religious believe and member of an Islamic Student Association. I had been targeted by Hindu fundamentalist. It was very difficult time for me, Hindu militants would pursue me no matter where else I might go in India. 8. The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM in his honour judgment delivered on 23 March 2007 failed to find the error of law and relief under section 39B of the Judiciary Act. 9. My point is that despite having attended the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP [v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162]. 19 The appellant filed written submissions which are not related to the grounds identified in the notice of appeal. Paragraphs numbered 1 to 5 in the written submissions are as follows: 1. On the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrated actual bias: In the Tribunal decision finding and reasons not properly justified by the Migration Act 1958. The Tribunal reject my claims without considering my evidence in relation to major issues. 2. The Tribunal exceeded its jurisdiction by: (a) Failing to take into consideration the threat of my life and/or liberty and my family suffered greatly since ethnic violence had started in Pudupet in 1991. (b) The Tribunal has failed to consider the impact on me because of my membership with Adrampattinam Jamat Islam in Pudupet and Palani Baba. 3. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal. 4. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information. 5. The Tribunal applied the wrong test: (a) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicants the Tribunal was, in effect, placing too high an onus of the proof of the applicants and failing to give the applicants the benefit of the doubt. (b) The Tribunal left out individual elements of the applicants claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution. 20 Paragraph numbered six in the written submissions complains that the Tribunal failed to recognise that the appellant satisfied all of the elements of the definition of "refugee" in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. Paragraph numbered seven complains that the Tribunal did not accord to the appellant procedural fairness and that his case was identical to that of Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin). 21 I do not think that any of the grounds as stated in the notice of appeal or any of the further matters relied on in the appellant's written submissions demonstrate jurisdictional error. For example, the complaint that the Tribunal did not conduct itself in good faith and was subject to either actual bias or apprehended bias is not made out. The facts of the present case bear no resemblance to those that showed a failure to accord procedural fairness in Muin. The unparticularised complaint that the Tribunal had failed to observe particular provisions of the Act is not made out. 22 Various complaints that the Tribunal had not dealt with certain matters are also not supported. By way of illustration, the final ground (numbered nine) in the notice of appeal, relating to s 424A of the Act was considered by the Federal Magistrate at para [29] of his reasons for decision, where his Honour observed that the Tribunal sent a s 424A letter setting out extensive detail of the information and its relevance. The complaint made in the paragraph numbered four in the appellant's written submissions in relation to the use made by the Tribunal of country information refers to material that is within the exception provided for in s 424A(3)(a). 23 Since I do not think that any of the grounds of appeal or the complaints made in the appellant's written submissions demonstrate jurisdictional error, the Federal Magistrate was correct in concluding that the Tribunal's decision was a privative clause decision and that that Court had no jurisdiction to interfere. 24 For the above reasons 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 Lindgren.