SZMQV v Minister for Immigration and Citizenship [2009] FCA 455

FEDERAL COURT OF AUSTRALIA

SZMQV v Minister for Immigration and Citizenship [2009] FCA 455

SZMQV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 80 of 2009

BESANKO J

7 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 80 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMQV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 7 MAY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 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 80 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMQV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 7 MAY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals against orders made by the Federal Magistrates Court on 19 December 2008. On that date, an order was made that the appellant's application for constitutional writs directed to the Minister for Immigration and Citizenship and the Refugee Review Tribunal ("the Tribunal") be dismissed and that the appellant pay the first respondent's costs. 2 The appellant is a citizen of Thailand. He arrived in Australia on 11 November 2007 and he applied for a Protection (Class XA) visa on 24 December 2007. A delegate of the first respondent refused the appellant's application on 21 February 2008. The appellant was notified of the decision on that day. On 26 February 2008, the appellant made an application for review of the delegate's decision to the Refugee Review Tribunal ("the Tribunal"). The Tribunal handed down its decision on the application for review on 24 July 2008. The Tribunal decided to affirm the decision not to grant the appellant a Protection (Class XA) visa. The appellant was advised of the Tribunal's decision on 24 July 2008, and he instituted his proceeding in the Federal Magistrates Court on 18 August 2008. 3 The appellant pursued his application before the Federal Magistrates Court on five grounds. Only two of those grounds are pursued on the appeal to this Court. First, the appellant claims that the federal magistrate erred in not concluding that the Tribunal member made six errors which were such that the decision of the Tribunal member was "flawed" and that the Tribunal member had not given the appellant "a fair and just hearing". Secondly, the appellant claimed that the federal magistrate erred in failing to conclude that the Tribunal member was biased. 4 Before turning to consider the two grounds, it is necessary for me to summarise briefly the basis upon which the appellant claimed an entitlement to a protection visa. 5 The appellant is a citizen of Thailand and he is 43 years of age. He is a Muslim. He claimed to have owned a business in Thailand which he operated from February 2006 until November 2007, and he claimed to have resided at the same address since 1998 until he departed from Thailand in November 2007. He claimed that, as a Muslim, he was treated very badly. There was unrest and the army became involved. Protesters and Muslims were killed by the army. The conduct of his business involved the appellant travelling around the country and he was given a "hard time" by the army. In April 2006, he and some friends organised peaceful meetings of the local businessmen and people, who were sick and tired of the behaviour of the army and the terrorists. He spoke out about the activities of these organisations and was soon considered a threat. He became friendly with a man by the name of Amin. He also knew, and was associated with, a man named Mamin. On 29 March 2007, Amin was abducted, and has not been seen since. On 3 April 2007, Mamin was "gunned down" between two military check posts. The appellant claimed that people started to look for him. 6 The Tribunal's reasons comprise 20 pages. In her reasons, the Tribunal member sets out in detail the appellant's claims and the evidence and other material he advanced in support of those claims. The evidence included statutory declarations by the appellant and two other persons. In addition, the Tribunal member summarises the evidence the appellant gave at a hearing on 15 May 2008 and then at a further hearing on 10 June 2008. The Tribunal member also summarises extensive post-hearing submissions made by the appellant on 16 June 2008. 7 The Tribunal member set out her findings and reasons. She said that, in essence, the appellant claimed to fear to persecution because of his attempt to help a friend called Amin. He claimed that, because of his and other people's involvement in the matter, persons including Amin and others were abducted and killed. He claimed that if he returned to Thailand he would be killed. The Tribunal member said that she did not find the appellant to be credible on some key aspects of his claims. She then identified three areas involving what she called inconsistencies and implausibility which led her to conclude that the appellant was not truthful or credible: 1. At the hearing before the Tribunal, the appellant gave evidence to the effect that a number of his friends were shot or went missing. He did not mention these matters in the lengthy statement he gave in support of his protection visa application. The Tribunal member was not convinced by the appellant's explanation for omitting this information. 2. The appellant's evidence in relation to the organisation he claimed was set up in 2006 was unsatisfactory. The Tribunal member said: "The Tribunal accepts that the applicant and others engaged in conversations about the situation in their area. The Tribunal is not satisfied that they set up an organisation which attracted adverse attention from the army and the terrorists as claimed by the appellant. It is the Tribunal's view that the applicant provided details about the organisation in an effort to portray himself as a political activist who could attract adverse attention."