FEDERAL COURT OF AUSTRALIA SZKRP v Minister for Immigration and Citizenship [2008] FCA 597 Migration Act 1958 (Cth) ss 5(1), 36, 424A Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 SZKRP v Minister for Immigration & Anor [2007] FMCA 1720 cited SZKRP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2071OF 2007 GRAY J 5 MARCH 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2071 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKRP Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE OF ORDER: 5 MARCH 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the proceeding. 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 2071 OF2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKRP Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE: 5 MARCH 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court, given on 3 October 2007, and designated as SZKRP v Minister for Immigration & Anor [2007] FMCA 1720. The learned Federal Magistrate dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 17 April 2007 and handed down on 8 May 2007. The Tribunal dismissed an application by the appellant for review of a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, refusing to grant to the appellant a protection visa under the Migration Act 1958 (Cth) ("the Migration Act"). 2 The appellant is a citizen of India. He first arrived in Australia on 26 October 2006. He returned to India on 5 November 2006 and re-entered Australia on 1 December 2006. He then applied for a protection visa on 7 December 2006. The Minister's delegate made the decision refusing to grant the visa on 6 February 2007. 3 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments taken together the "Convention." For present purposes it is sufficient to note that Australia has protection obligations to a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 4 The appellant claimed that he had been persecuted in India because of his political opinion, manifested in his political affiliations and his political activities. He made a detailed case to the Tribunal, in which he claimed that he had suffered harm that might have amounted to persecution over a number of years. He claimed that he had been a member of an organisation known as the Radical Youth League, which is a youth wing group of the People's War Group of the Communist Party of India (Marxist-Leninist) ("CPI(ML)"). He claimed that he had visited villages, held meetings and conducted propaganda activities, and that he had been an official of the movement for several years. He referred to several instances of arrest and torture followed by release, of serious assault, of threats to himself and his family, and of actions taken against them. He claimed that he had to leave India in order to preserve his life, and that he revisited India in November 2006 because his mother was then very ill and dying, but was forced to leave again quickly. 5 The Tribunal made a number of findings that were adverse to the appellant's case. It found that he was not a credible or forthright witness in presenting his case, that he was evasive and unresponsive to the Tribunal's questions, and that his evidence was often confusing and given after much prompting by the Tribunal. Consequently, the Tribunal did not accept the claim that the appellant was an active member either of the People's War Group or the Radical Youth League. The Tribunal did not accept that the appellant was involved in the activities of those organisations to the extent he claimed. The Tribunal did not accept that the appellant had been persecuted for reasons of such membership. The Tribunal's conclusions in these respects were based on detailed findings as to the lack of credibility of the appellant, his lack of knowledge about things that the Tribunal thought he should know if he had been involved in the organisations to which he claimed to have belonged, and the general problems that the Tribunal found with the appellant's evidence. 6 In addition, the Tribunal found it significant that the appellant had passed up several opportunities to apply for asylum, prior to the time when he did so. He had travelled to the United Kingdom in 2002 for three months, although he claimed that he had already been detained and mistreated in a persecutory way before that visit. He had also failed to apply for asylum in Australia prior to his departure on 5 November 2006. 7 The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. The grounds in his application were far from clear and did not necessarily specify jurisdictional error on the part of the Tribunal, as the appellant was obliged to do if he were to succeed in that court. In the result, in his reasons for judgment, the Federal Magistrate dealt with some six grounds, a combination of grounds specified in the application and grounds which the appellant apparently put to the court in the course of its hearing. The Federal Magistrate rejected each of those six grounds. 8 The first ground was incorrect application of the law to the facts. The Federal Magistrate pointed out that the Tribunal's decision was based on its finding that the appellant's claims could not be believed and the issue of application of the law to the facts was not one that emerged in the Tribunal. The second ground was alleged failure of the Tribunal fully to inquire into the matter before it. The Federal Magistrate pointed out that the Tribunal has the power to make its own inquiries but is under no obligation to do so, and it was fundamentally the appellant's task to put before the Tribunal the material that would satisfy it that he was a person entitled to protection. The third ground was an alleged denial of procedural fairness, which the Federal Magistrate found amounted to no more than an assertion that the Tribunal did not believe what the appellant said and took an overly stringent approach to questions of credibility. Not surprisingly, the Federal Magistrate did not find that those matters gave rise to a denial of procedural fairness. The fourth ground related to the weight to be given to the evidence. The Federal Magistrate pointed out that the weight to be given to evidence was a matter for the Tribunal. The fifth ground asserted bias on the part of the Tribunal and lack of good faith. The Federal Magistrate found that the allegations were not made out as a matter of fact. The sixth ground alleged a miscarriage of discretion. This ground raised the proposition that the appellant had asked the Tribunal to give him more time than it proposed to allow him to respond to a notice sent to him pursuant to s 424A of the Migration Act. The Federal Magistrate said that the Tribunal was under no obligation to extend the time to answer that notice and took the view that it had good reason for refusing to extend that time. Indeed, the Tribunal found in effect that the appellant's case was so weak that corroborative evidence would be unlikely to change its view, even if the appellant were able to obtain any. 9 In his notice of appeal to this Court, the appellant raised only one ground, namely that the Tribunal erred in failing to consider all claims and issues that he had put to it. This was not a ground raised before the Federal Magistrates Court, except to the extent that it may have been covered by the second ground, failure to inquire adequately into the case. 10 After the appeal had been listed for hearing on 5 March 2008 and notice of that listing had been sent to the appellant, he wrote a letter to the Court, dated 31 January 2008. In that letter, the appellant informed the Court that he had received further documents that he felt would assist his case, and was in the process of obtaining other documents that he thought would assist his case. He requested an extension of time to provide further proof related to his involvement with the People's War Group and the Radical Youth League, and to establish his genuineness as a person seeking protection under the Convention. He asked for an adjournment of the appeal for between six and 12 months in order to produce further documents, and requested the availability of a translator from the Tamil language in order to translate those documents. 11 At the hearing before me today the appellant argued his case for an adjournment. It was not the first occasion on which the appellant had sought an adjournment of this kind. According to the Tribunal's reasons for decision, in response to the Tribunal's notice under s 424A of the Migration Act, dated 6 March 2007, the appellant responded in a submission received by the Tribunal on 19 March 2007. In that response, the appellant indicated that, if he was given more time, he would collect material at that stage not available to him. He said that it would take at least six months to provide such material because he would have to organise people to collect the documents from the authorities. The appellant then requested six to 12 months to provide the additional material. The matter was raised at the Tribunal's hearing on 2 April 2007 and the Tribunal indicated that the appellant could have until 11 April, when a response to a further notice under s 424A was due. The appellant provided nothing further in the way of documents, not before 11 April, not before the Tribunal's decision was signed on 17 April, and not before the decision was handed down on 8 May. I have been informed by counsel for the Minister that the appellant also asked the Federal Magistrates Court for an adjournment, so that he could obtain further documents, and that this was refused on the basis that, because the application to that court was for judicial review of the decision, further documents that might have helped the appellant to establish his case in the Tribunal would not be of any value to him. 12 In the course of the hearing today, I have endeavoured to explain to the appellant that an adjournment to enable him to obtain further documents, or to procure translations of documents he has already obtained, would not assist his appeal. The function of the Federal Magistrates Court was not to determine whether the Tribunal made errors of fact within its jurisdiction. Fundamentally, that court's function was to determine whether the Tribunal had performed its statutory function and had provided a proper process for the appellant to put forward his case that he required protection. The Tribunal's decision that the appellant had not put forward such a case was manifestly one based on the facts, and therefore manifestly one that fell within the proper exercise of its function and within its jurisdiction. It was not open to the Federal Magistrates Court, and is not open to this Court, to take issue with the Tribunal's decision about matters of fact. Even if the appellant were able to provide documents that established clearly that the Tribunal was wrong as a matter of fact, this would not avail him in this Court and would not have availed him in the court below. For two reasons, therefore, the appellant's application for an adjournment of this appeal is properly refused. The first is that it is an application somewhat lacking in credibility, having regard to the length of time that the appellant has previously sought to obtain the very types of documents that he now seeks a similar amount of time to gather and provide. The second reason is that, in any event, even if the appellant were able to gather and provide further documents, they would not avail him in relation to the appeal. 13 In the course of the hearing, I endeavoured to direct the appellant's attention to the six grounds dealt with by the Federal Magistrate, and to invite the appellant to make submissions that the Federal Magistrate was in error in relation to any of those grounds. If the appellant had been able to do so, it would have been possible for me to grant him leave to amend his notice of appeal to this Court so as to raise such error and to argue it. Similarly, I invited the appellant to direct his attention to the single ground of appeal in his notice of appeal to this Court, on the basis that, if he could show that that ground had any substance, it might be open to me to grant him leave to raise a ground of appeal not raised before the Federal Magistrate and to argue it in this Court. The appellant was not able to address himself to any of the grounds in the Federal Magistrate's judgment, nor to the ground in his notice of appeal. He wanted to explain to me that the Tribunal had made errors. 14 First, the appellant took me to the claim that he made to the Tribunal that he had joined the Radical Youth League. He then took me to the Tribunal's summary of evidence from sources other than the appellant about the People's War Group, its origins and its personnel, and the fact that it was banned by the state of Tamil Nadu on 10 September 2004. The Tribunal also made a finding that the Radical Youth League had not been banned in Tamil Nadu, but had been targeted by Tamil Nadu police. The appellant wanted to take me to the Tribunal's finding that, when questioned about both the People's War Group and the Radical Youth League, their background and their standing in Tamil Nadu, the appellant was unaware whether or not those two organisations were banned by the government of Tamil Nadu, and was unable to state the history of the People's War Group or the election involvement of the CPI(ML). Plainly, these are matters that go to the merits of the Tribunal's decision, in the sense that they seek to challenge the Tribunal's conclusions of fact. The Tribunal concluded that, because of the ignorance of the appellant about these basic matters, it could not accept that he was an active member of either the People's War Group or the Radical Youth League. It is not open to me to say that the Tribunal was wrong in refusing to accept those claims. 15 The appellant then took me to a passage in the Tribunal's reasons, which recounted its questioning of the appellant in its hearing in relation to the number of candidates the CPI(ML) had in the 2006 state elections. The appellant wanted to show me further documents that related to that matter. Again, if I had looked at those further documents it would not have assisted the appellant. It would only have been a matter of the appellant arguing that the Tribunal was wrong not to accept what he said about those matters. That is not something that falls within the power of this Court. 16 Accordingly, it is necessary for me to dismiss the appellant's appeal. 17 There appears to me to be no reason why the usual order, that costs follow the event, should not be made. The appellant has not been able to make any submission to me about why that principle should not be applied. Accordingly, I will order that the appellant pay the Minister's costs. The orders of the Court are as follows: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 2 May 2008 Counsel for the appellant: The appellant appeared in person Counsel for the respondent: S Free Solicitor for the respondent: Australian Government Solicitor Date of hearing: 5 March 2008 Date of judgment: 5 March 2008