SZNEC v Minister for Immigration and Citizenship [2009] FCA 1009

FEDERAL COURT OF AUSTRALIA

SZNEC v Minister for Immigration and Citizenship [2009] FCA 1009

SZNEC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 490 of 2009

GRAHAM J

18 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 490 of 2009

BETWEEN: SZNEC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 18 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal constituted by the Notice of Appeal filed 28 May 2009 be dismissed. 2. The appellant pay the respondent Minister's costs. 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

GENERAL DIVISION NSD 490 of 2009

BETWEEN: SZNEC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 18 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant was born in Kuruvilassery in the State of Kerala in India in February 1981. He travelled to Australia via New Zealand, arriving on 25 April 2008. He travelled on an Indian passport issued to him on 1 February 2002, and entered Australia under a one-month visitor visa issued to him at New Delhi in India on 4 April 2008. 2 On 14 May 2008, the appellant lodged an application for a Protection (Class XA) visa. The application included a lot of information in manuscript form which was not written upon the form by the appellant but he says that he dictated it, and it was written down for him by another person in English. He signed the application in a number of places, and is familiar with the matters recorded in manuscript form. 3 On 12 August 2008 a delegate of the Minister refused the application for a Protection (Class XA) visa. 4 On 4 September 2008 the appellant applied for a review of the Minister's delegate's decision by the Refugee Review Tribunal ('the Tribunal'). The appellant submitted extensive additional material to the Tribunal. By letter dated 17 September 2008 the appellant was invited to appear before the Tribunal on 22 October 2008 to give oral evidence and present arguments, the Tribunal advising that it had considered the material before it, but was unable to make a favourable decision on that information alone. The appellant sought an adjournment of the proposed hearing to allow him to gather further information. By a letter dated 15 October 2008, the Tribunal informed the appellant that the presiding member had considered the request for a postponement of the hearing carefully and had decided not to postpone it. Accordingly the hearing proceeded on 22 October 2008. 5 In the meantime, an invitation to provide further information in writing had been extended to the appellant by letter dated 29 September 2008, and further material was provided. Two documents that were submitted by the appellant were a purported medical certificate of a Dr. Navas, who apparently recorded that the appellant had been admitted in the K.J. Hospital at Kodungallur on 7 September 2007 with a fractured right tibia and fractured right ulna with suspected head injury. The certificate recorded that he had been discharged on 5 October 2007 and was 'advised to take rest for 3 months from the date of discharge'. 6 A second document purportedly issued by K.J. Hospital was a discharge card, apparently dated 5 October 2007, which recorded that the appellant had been admitted with a fractured right tibia and fractured right ulna on 7 September 2007, with a notation of suspected head injuries and recording that he was discharged on 5 October 2007. 7 A further document relied upon by the appellant and submitted to the Tribunal was a 'Notice to call public meeting' which, under the heading 'GETTING ORGANIZED AGAINST R.S.S.S AND SIMY RADICALS' stated as follows: '… At present he [referring to the appellant] is in hospital in a critical stage unconscious struggling to life and death and he was fighting towards fundamentalism and superstitious beliefs.' The notice to call public meeting was dated 4 September 2007, and invited people to attend a public gathering and rally on 5 September 2007. 8 The hearing before the Tribunal took place on 22 October 2008 and lasted for approximately two and three-quarter hours. By letter dated 22 October 2008 the appellant was provided with a copy of the recording of the Tribunal hearing of 22 October 2008, but neither that recording nor a transcript of it was placed in evidence before the Federal Magistrates Court of Australia or this Court. 9 On 26 November 2008 the Tribunal wrote to the appellant inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or response he may make, be the reason, or a part of the reason, for affirming the decision that was under review. Two matters in particular were drawn to his attention, upon which his comment was invited. One related to the existence of a publication which was said to be a weekly magazine called 'Theenaalam' and the other was an alleged attack on a publication house, in mid-2007, which was said to be the publisher of the 'Theenaalam' weekly magazine. The Department of Foreign Affairs and Trade information suggested that there may not be any such magazine, and further, that there may have been no attack upon any publication house in 'Kodungalloor' at the time in question. 10 By letter dated 19 December 2008 the appellant responded to the s 424A letter from the Tribunal of 26 November 2008. The member of the Tribunal, who constituted the Tribunal for the purpose of considering the appellant's application for a review, decided that the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa should be affirmed, on 22 December 2008. By letter dated 23 December 2008 the appellant was informed of that decision and provided with a copy of the Tribunal member's Statement of Decision and Reasons. 11 On 18 January 2009 the appellant filed an application for judicial review of the Tribunal's decision in the Federal Magistrates Court of Australia. That application contained some seven grounds upon which the appellant relied. It is unnecessary to set out the terms of those grounds as they were replaced by an Amended Application filed 27 February 2009, which included some 16 grounds of appeal. For reasons which will shortly appear it is unnecessary to set out those grounds. Suffice it to say that they read more like an application for a protection visa than an attack upon any relevant error that the Tribunal may have committed. 12 On 7 May 2009 the Amended Application for review came before the Federal Magistrates Court of Australia constituted by Driver FM, who handed down his decision on the same day. His Honour ordered that the application be dismissed and that the appellant pay the respondent Minister's costs and disbursements of, and incidental to, the application fixed in the sum of $6,000. 13 On 28 May 2009 the appellant filed a Notice of Appeal in this Court appealing from the whole of the judgment of Driver FM of 7 May 2009. The grounds relied upon were set out in paragraphs bearing the numbers 2, 3, 4, 5, 8 and 9. There were no paragraphs 6 or 7. The grounds recorded in the Notice of Appeal were as follows: '2. The single Judge of the Federal Magistrate Court (sic) in his Honours judgement delivered on 7 May 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903. 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 5. The RRT emphasised on some irrelevant question at the oral evidence and ignored my political background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied in part on irrelevant material and/or made findings which were erroneous or mistaken. 8. That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that Tribunal did not take into account certain relevant consideration or 'integers' central to the applicant's claim. 9. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction. Particulars of ground: a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from SIMI and RSS. b) In relation to above the Tribunal did not consider the applicant's claim that his distinguishable position within SNDP, as well as his activities therein particularly speeches and articles against religious fanatics and terrorists resulted in threats of his life.' 14 Material provided by the appellant to the Tribunal recorded that he travelled to Australia with his parents, and that they went back to India in the following month. 15 It would appear that the appellant claimed to have a well-founded fear of persecution for reason of his membership of a particular social group. He, himself, claimed to be a Hindu, but feared Muslim extremists and Hindu radicals. He claimed to be favourably disposed to the teachings of Sree Narayana, who advocated 'one cast (sic), one god, one religion', 'don't ask cast (sic), don't tell and don't think' and 'what ever the religion, man has to be refined'. 16 The claims made by the appellant in his application for a Protection (Class XA) visa were set out in handwritten form against the standard questions numbered 41 to 45, inclusive, and continued on four other pages in respect of his answer to question number 41. 17 The problems confronting the appellant's appeal is that he does not identify any relevant jurisdictional error on the part of the Tribunal member. 18 In his oral submissions in support of the six grounds identified in his Notice of Appeal, which he addressed seriatim, he expressed his feeling that the Tribunal should have accepted the documents which he submitted. He felt that he did not get his answers across to the Tribunal member's questions. He had a difficulty in providing other documents because, although his parents had returned to India, they had not gone back to his home where he said he had other documents available to him. He expressed a grievance with the court system which did not accept the problems he says he was facing in India. He asserted that it will be very dangerous for him to return to India, and that he may be killed if he returned. He requested that the Court do something to protect him. He asked for leniency from the Court in considering his application, and he asked that sympathetic attention be given to his appeal. He recorded that one of the reasons why he had not been believed was that he had problems with his memory ever since he had been attacked by his enemies and suffered injuries to his head. 19 The problem with the appellant's case is that he simply was not believed by the Tribunal member. The Tribunal member recorded in her reasons that she placed no weight on the documents which had been provided by the appellant referable to his hospitalisation given her assessment of the appellant's lack of credibility and the high prevalence of document fraud in India. Having regard to the discrepancy between the dates of and recorded in the documents of September/October 2007, to which reference has been made, the finding of the Tribunal member is hardly surprising. 20 The Tribunal member accepted that the appellant was a citizen of the Republic of India, and noted that he claimed to fear persecution in India because he was a member and branch secretary of the SNDP in Kerala for the last five years, who gave speeches and wrote articles against the religious fanatics and terrorism. The Tribunal member appears to have accepted that the appellant was branch secretary of the SNDP for five years but noted that there was no independent country information documenting attacks on members of the SNDP in Kerala by the RSS or SIMI organisations from 2003 to December 2008. 21 Time and again the Tribunal member used the expression 'does not accept' in respect of claims made by the appellant and, time and again, the Tribunal member recorded that she did not consider the appellant to be a witness of truth and did not find him to be credible. On many occasions the Tribunal member recorded claims made by the appellant as being implausible. 22 Decisions upon the grant or refusal of protection visas are made in the first instance by the Minister, his or her powers normally being exercised by one or other of the Minister's delegates for the purposes of s 65 of the Migration Act 1958 (Cth) ('the Act'). Section 65 of the Act relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant a visa; or (b) if not so satisfied, is to refuse to grant the visa.' 23 A decision to refuse to grant a visa is a RRT-reviewable decision within the meaning of the Act (see s 411(1)(c)). Section 412 makes provision for applications for review of RRT-reviewable decisions. Under s 415(1) of the Act, the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision. 24 The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly, for present purposes, provides as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) 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; …' 25 The Refugees Convention means the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, and the Refugees Protocol means the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention.' 26 Plainly satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. As has been said many times, proceedings in the Tribunal are not adversarial but, rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 ('Applicant S154/2002') at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]). 27 The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]-[58]). Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a cause would be likely to run a risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]). 28 It is apparent that what the appellant seeks in this case is a merits review. No jurisdictional error on the part of the Tribunal has been identified. The Tribunal was simply not satisfied in relation to the matters to which s 65 of the Act referred. 29 In my opinion, the learned Federal Magistrate did not fall into error in dealing with the application for review as he did. In my opinion, the appeal should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.