SZMRR v Minister for Immigration and Citizenship [2009] FCA 159

FEDERAL COURT OF AUSTRALIA

SZMRR v Minister for Immigration and Citizenship [2009] FCA 159

Migration Act 1958 (Cth) ss 424, 424A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied SZMRR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1911 of 2008

LOGAN J

20 FEBRUARY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1911 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMRR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 20 FEBRUARY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The Appellant is to pay the First Respondent's costs of and incidental to the appeal to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1911 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMRR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE: 20 FEBRUARY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the Republic of India. He came to Australia on Boxing Day, 26 December 2007. On 5 February 2008, he lodged with the Department of Immigration and Citizenship an application for what is known as a protection visa. That application was considered by a delegate of the Minister for Immigration and Citizenship (the Minister). The Minister is the active party Respondent to the present appeal. On 8 February, 2008, the Minister's delegate decided to refuse the Appellant's protection visa application. The Appellant then sought the review of that decision by the Refugee Review Tribunal (the Tribunal). 2 On 17 July, 2008, the Tribunal decided to affirm the decision of the Minister's delegate to refuse the application for a protection visa. That decision and the Tribunal's written reasons for making it were communicated to the Appellant under cover of a letter from the Tribunal dated 12 August 2008. The Appellant then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 20 November, 2008, for reasons which were published that day, the Federal Magistrates Court dismissed the Appellant's judicial review application. It is from that decision that the Appellant appeals to this Court. 3 There are three grounds specified in the notice of appeal: 1 Jurisdictional error. 2 Breched of procedure [sic]. 3 Error of law. 4 These grounds have about them a blandness such that it is not strictly possible to give them meaningful content as a basis for a challenge to the decision of the Federal Magistrates Court. Further, ground 1 at least, if not the others, looks to be a challenge to the way in which the Tribunal made its decision and carried out its function under the Migration Act 1958 (Cth) (the Act) rather than, as should be the case in a proceeding of the present kind, engage with and state the alleged legal error in the decision of the Federal Magistrates Court. 5 As a matter of fairness and out of an abundance of caution, particularly given the Appellant's absence of legal representation either before this Court or the Federal Magistrates Court, I sought from him in the course of oral submissions amplification of the concerns which he had which lay behind the grounds of appeal. The Appellant made particular reference in response to his having shown to the Tribunal a wound on his hand which he said had been caused by acid. He mentioned that he had told the Tribunal this had been caused when persons sent by his girlfriend's father had come to his house. The Appellant also voiced a concern that the Federal Magistrates Court had not explained the procedures before that court to him. 6 Some reference to the basis upon which the Appellant advanced his claim for a protection visa is necessary. The essence of his claim was a fear of persecution in India on the basis of his adherence to the Muslim faith. More particularly, that fear was said to arise against the background of a relationship dating from his schooldays which he had over the years with a lady of the Hindu faith. That lady's father was, so the Appellant said, in his claim for a visa and later evidence, prominent in a Hindu organisation, the RSS. At one stage in the course of the administrative consideration of his application, the Appellant claimed to be a member of Muslim organisations, including the Tamil Nardu Tavheeth Jamath (TNTJ). 7 In short, the Appellant's claim was that he had been told to end the relationship with the young lady after it had come to the attention of her father, and that various acts of violence had thereafter been perpetrated upon him when that relationship had not ended. The Tribunal afforded the Appellant an opportunity to give oral evidence in support of his review application. He took up this opportunity. The Tribunal's reasons, viewed overall, disclose a comprehensive engagement by the Tribunal with and a reflective consideration of the merits of the Applicant's claim for a protection visa, having regard to the totality of the evidence as it stood at the time when the Tribunal came to give its decision. 8 The reasons include the following paragraphs which I quote because they evidence the taking into account by the Tribunal of the evidence the Appellant gave in relation to acid being used to assault him. I quote from para 59 and para 60: 59 After this, the applicant spoke to the girl by phone. In June 2003, several people came to his home at Gugarath. They attacked him. His arm was injured. They wanted to beat him and they had a knife and acid. He got acid on his arm. He said that they poured acid onto a wall and it splashed onto his arm. He got medical attention at the hospital in his village. He was given tablets and medicine was applied to his arm. The applicant showed the tribunal the scar on his arm. 60 The tribunal raised with the applicant the fact he did not mention the acid burns in his written statement. In fact, the statement implies that he was injured with a knife. The tribunal advised the applicant of the relevance of this in terms of the credibility and the assessment of the genuineness of his claims and offered him time to respond. 9 The Tribunal's reasons go on to record the responses and further evidence given by the Appellant. It is evident from the Tribunal's findings and reasons that inconsistencies in the evidence given by the Appellant formed a basis of the credibility findings the Tribunal came to make in respect of the factual basis upon which the claim for a protection visa was propounded. An example of this, relative to the summary of evidence in the Tribunal's reasons in the passage from which I have quoted, is to be found at para 87 of the Tribunal's reasons: There are also contradictions in the applicant's application and the evidence he gave at the hearing. In his statement he said that "one of them (the attackers) took a knife and wanted to stab on my neck. I raised my hand and got injured on my hand." However, in evidence at the hearing, the applicant said he had been burned with acid which had splashed on his arm. 10 It is possible to find, but unnecessary to cite, other examples given by the Tribunal in its reasons of inconsistencies which plainly enough influenced the Tribunal in relation to the findings that it came to make. In short, the Tribunal did not accept the basis upon which the protection visa was claimed. The Tribunal found that the Appellant would not experience serious harm as defined in the Act upon his return to India. It did not accept that he would face a real chance of persecution for any reason based on the Refugee Convention (Convention) if he were to return to India. The Tribunal thus found that it was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Convention. 11 In the Federal Magistrates Court, the basis of challenge to the Tribunal's decision was twofold, having regard to the application for judicial review filed in that court. The grounds specified were: 1. RRT made a jurisdictional error. 2. RRT did not comply with section 424 of the Migration Act. 12 Unremarkably, the learned Federal Magistrate did not regard ground 1 in the judicial review application as specifying a meaningful ground of judicial review. Reading the reference to s 424 on its face, the Federal Magistrates Court found that it was not applicable to the proceeding before the Tribunal because the Tribunal had not sought additional information. Out of an abundance of caution though, it seems the Federal Magistrate went on to consider the prospect that there was an error in the reference in ground 2 in the judicial review application to s 424 and that perhaps the intention was to refer to s 424A. The learned Federal Magistrate observed at para 37: However, it may well be the case that the applicant or his adviser actually meant there was a breach of section 424A of the Migration Act. Again, however, the ground must fail. The tribunal relied on the applicant's own evidence to the tribunal for its finding that the applicant was not a credible witness. The tribunal did not rely on any other information that was the reason or part of the reason for affirming the decision. Consequently, the information upon which the tribunal relied was excluded from the operation of section 424A subsection (1) by section 424A subsection (3) paragraph (b). 13 Even viewing the grounds in the notice of appeal as a challenge to the correctness of the way in which the Federal Magistrates Court dealt with the question of whether either s 424 or s 424A of the Act was violated, the result nonetheless is that there is no error on the part of the Federal Magistrates Court in the conclusions which that court reached on those subjects. 14 It is evident from the reasons of the Federal Magistrates Court that the submissions before that court, understandably enough perhaps with a person appearing for himself, ventured into the factual merits of the visa application. The learned Federal Magistrate correctly observed, by reference to pertinent authority, namely Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that merits review before that court was not open. 15 There is certainly nothing inherently implausible about the prospect of strong passions and perhaps even, sadly, acts of violence being engendered in respect of a relationship which bridges a religious divide. However, the assessment of whether or not, in this particular case and against such a background, a visa application ought to be successful was a matter for the Minister and his delegates in the first instance and on external merits review by the independently constituted Refugee Review Tribunal. 16 Where, as here, a Tribunal has made findings based on conclusions as to credit which are not inherently illogical, it would transgress the role consigned to the courts on judicial review to interfere with a conclusion of the Tribunal. Against such a background, there was no error on the part of the Federal Magistrates Court in refusing the judicial review application. Further, whilst it may have been a counsel of perfection for that court to have explained in detail the nature of a judicial review proceeding to an unrepresented person appearing before it, particularly one whose first language was not English and whose culture was different to that of Australia, there was no obligation on that court so to do. 17 It is quite apparent from the reasons of the learned Magistrate that the Federal Magistrates Court went to a considerable length, even beyond the confines of the strictness of the judicial review application, to consider whether or not there was error, jurisdictional error, on the part of the Tribunal. That is indicative of a fair hearing having been afforded to the Appellant and there is no evidence before me which would suggest otherwise. 18 However one approaches the matter, the appeal is without merit. It must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.