SZNDD v Minister for Immigration and Citizenship [2009] FCA 405

FEDERAL COURT OF AUSTRALIA

SZNDD v Minister for Immigration and Citizenship [2009] FCA 405

SZNDD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 263 of 2009

JACOBSON J

24 APRIL 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 263 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNDD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE OF ORDER: 24 APRIL 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs in the proceedings.

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 NSD 263 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNDD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE: 24 APRIL 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Nicholls FM on 11 March 2009 dismissing an application for review of a decision of the Refugee Review Tribunal dated 19 December 2008. 2 The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 3 The appellant's claims were broad ranging. They appear to have been dealt with comprehensively by the Tribunal, as were the seven grounds of review which were raised before Nicholls FM. 4 The Notice of Appeal does not raise any arguable ground of appeal but the appellant appeared in person and argued the matter at some length. Although an interpreter was present, the appellant is fluent in English and did not need the interpreter's assistance. 5 The essence of his appeal was that there were a large number of errors in the Federal Magistrate's decision, many of which were, individually, minor errors but when taken together, were conclusively sufficient to amount to appellable error on the part of the Federal Magistrate. 6 The appellant was born in Podgorica (formerly Titograd) in the former Federal Republic of Yugoslavia ("FRY"). His ethnic background is Montenegrin and he claimed to be a citizen of Montenegro. He told the Tribunal that he had also applied for Serbian citizenship but that this had not been finalised for bureaucratic reasons. 7 The appellant nevertheless claimed to have a well-founded fear of persecution in both Montenegro and Serbia because of, amongst other things, his Montenegrin ethnicity, imputed Montenegrin Orthodox religion and imputed political opinion arising out of his family's connection to former President Tito and his opposition to the views of former President Milosevic. 8 A summary of the appellant's claims is recorded in [4] – [6] of the decision of the Federal Magistrate but the detail put to the Tribunal was extensive and was described by the Tribunal as "broad-ranging and sometimes overlapping". 9 The Tribunal formed the impression that the appellant's claims were sometimes exaggerated, misconstrued or otherwise unreliable and that they therefore required careful scrutiny. The Tribunal proceeded to do so and dismissed all of the claims. 10 The Tribunal's findings are summarised at [8] – [18] of the decision of the Federal Magistrate. It is unnecessary to repeat the findings. The appellant took issue with the accuracy of two minor aspects of the Federal Magistrate's statement of the Tribunal's findings but nothing turns on this. 11 I see no error in the Federal Magistrate's determination of the seven grounds of review. This is sufficient to result in an order that the appeal be dismissed but I will deal briefly with the major points that were argued before me. 12 First, the appellant asserted that he did not know that he had to provide evidence in support of his claims, including his claim to be entitled to Serbian citizenship. 13 It is, of course, well established that it is for an applicant to advance whatever evidence he or she wishes in support of the claim to have a well-founded fear of persecution for a Convention reason: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. 14 This is a principle of general application which applies to all claims for protection under s 411 of the Migration Act 1958 (Cth). It is not, as was suggested by the appellant, a principle limited to claims made by persons other than citizens of states within the FRY. 15 In any event, nothing turns on this because it is plain that the appellant did put a substantial body of evidence before the Tribunal. This included his statement accompanying the protection visa application, a statutory declaration supplied by his legal representatives and a lengthy submission provided by his legal representatives to the Tribunal on 29 October 2008. 16 Furthermore, at the end of the first oral hearing in the Tribunal on 31 October 2008, the Tribunal put to the appellant orally particulars of the information it considered would be a reason or part of the reason for affirming the delegate's decision. It invited the appellant to comment on this and wrote a separate letter to him under s 424A of the Act inviting his comments on certain matters, including country information. 17 There was then further correspondence between the appellant and the Tribunal and, on 8 December 2008 he was invited to attend a second Tribunal hearing on 16 December 2008. A letter following the invitation, dated 9 December 2008, made it plain that the Tribunal wished to consider, as an alternative to the appellant's claimed Montenegrin citizenship, the possibility that he was stateless. The letter stated that the Tribunal wished to consider that possibility because the appellant had given evidence that he did not currently have Serbian citizenship. 18 In light of all of this, it cannot be said that the appellant would have been unaware of the critical matters which affected his claim. 19 Second, the appellant claimed that the Tribunal ought to have considered his claim upon the basis that he was also a citizen of Serbia. He told me that he has now determined that he did have Serbian citizenship at the time of the Tribunal hearing. 20 However, it is a sufficient answer to this claim to say that the Tribunal cannot be criticised for considering his claims upon the basis that they were put before the Tribunal. Indeed, as the Federal Magistrate observed in March 2009 at [71], the appellant did not even then assert that he had been granted Serbian citizenship. 21 Third, the appellant told me that he had not been given proper assistance by his legal advisers. This ground was dealt with by the Federal Magistrate at [40]ff. As the Federal Magistrate observed, there was no material before the Court that established that the conduct complained of would amount to fraud on the part of the legal representatives. In those circumstances, Nicholls FM was correct to reject this ground of review. 22 Fourth, the appellant contended that the Presiding Member in the Tribunal was biased. He called the Tribunal's determination "pre-based" and asserted that it is well known in Villawood, where he is presently in detention, that the Presiding Member always determines applications adversely to asylum seekers. 23 However, claims of bias require more than an assertion. The Federal Magistrate referred to the leading authorities at [58] – [59]. He was correct in dismissing the claim. 24 In conclusion, therefore, there is nothing to suggest any denial of procedural fairness or jurisdictional error in the processes of the Tribunal. Nor is there any appellable error in the Federal Magistrate's finding of the absence of such error. 25 The fact that the appellant does not agree with the findings of the Tribunal does not amount to jurisdictional error. The Tribunal was not bound to accept the appellant's claims but was to decide whether it reached the necessary state of satisfaction as to whether the claims were made out. It was not so satisfied. 26 The appeal is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.