FEDERAL COURT OF AUSTRALIA SZNXJ v Minister for Immigration and Citizenship [2010] FCA 535 Citation: SZNXJ v Minister for Immigration and Citizenship [2010] FCA 535 Appeal from: SZNXJ v Minister for Immigration and Citizenship [2010] FMCA 89 Parties: SZNXJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 193 of 2010 Judge: NICHOLAS J Date of judgment: 19 May 2010 Legislation: Migration Act 1958 (Cth) s 424 Cases cited: SZNXJ v Minister for Immigration and Citizenship & Anor [2010] FMCA 89 affirmed Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited Date of hearing: 19 May 2010 Date of last submissions: 19 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 The appellant appeared in person Solicitor for the First Respondent: DLA Phillips Fox Counsel for the First Respondent: J Smith IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 193 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNXJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 19 May 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent'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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 193 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNXJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 19 MAY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from Transcript) 1 This is an appeal from a judgment given by Raphael FM on 8 February 2010 (see SZNXJ v Minister for Immigration and Citizenship & Anor [2010] FMCA 89). His Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal ("Tribunal") dated 25 August 2009 which affirmed a decision of the delegate of the first respondent to refuse to grant the appellant a Protection (Class XA) visa. Background 2 The appellant is a citizen of India who arrived in Australia on 14 February 2009. On 30 March 2009 he lodged an application for a protection visa. He claimed that he was at risk of harm because of his homosexuality. 3 In the course of explaining why it rejected the appellant's claim, the Tribunal noted that the appellant's oral evidence was confused, inconsistent and, in many instances, not forthcoming. It found that he was not a witness of credit. In addition, it expressed concerns about the authenticity of various documents which were relied upon by the appellant in support of his claims. In the result, the Tribunal did not accept that the appellant is, or is perceived to be, homosexual. The key findings of the Tribunal, which are also set out in the decision of the federal magistrate, appear at para [115] of the Tribunal's reasons for decision: After considering all the evidence and circumstance and having regard to all the incidents and claims reported by the applicant singularly and cumulatively, the Tribunal is not satisfied that all the statutory elements for the grant of a protective visa have been made out. The Tribunal does not accept that the applicant is or is perceived to be homosexual. Tribunal [sic] is not satisfied that the applicant suffered past persecution, nor does the Tribunal accept that if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that the applicant will be perceived to be a homosexual or that he will be persecuted for reasons of any real or imputed membership of any particular social group for the purposes of the Convention on the basis of his claimed homosexuality. As the applicant has not claimed any other reason for fearing to return to India, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to India. The Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations and affirmed the delegate's decision. Proceedings in the court below 4 In the Federal Magistrates Court the appellant raised five grounds in his application for review, namely: 1. The Tribunal failed to comply with s 424 of the Migration Act 1958. PARTICULARS: (a) At the hearing, the Tribunal invited the applicant to give information addition to that which the Tribunal had obtained i. The Tribunal asked questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way. (b) The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act: i) The invitation did not specify the way in which the additional information may be given. ii) The invitation did not specify the period within which the information was to be given. 2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived at in accordance with the requirements of the Migration Act. 3. The Tribunal's decision was unjust and was made without taking into account the full gravity of the applicants circumstances and the consequences of the claim. 4. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 5. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 25 August 2009 was effected by actual bias constituting judicial error. [Errors and emphasis in original] The learned federal magistrate rejected each of the appellant's grounds of review. appeal to this court 5 The grounds in the notice of appeal to this Court do not directly address the reasons for judgment of the federal magistrate. Nor was there any specific or reasoned challenge to any aspect of the federal magistrate's decision advanced in support of any ground of appeal. In parts, the grounds of appeal raise the same general and unparticularised grounds of judicial review that were rejected by the federal magistrate. In other parts they do no more than invite merits review of the Tribunal's decision. Against that background, I have reviewed the reasons of the Tribunal and the reasons of the federal magistrate for the purpose of determining whether there is any reason to consider that, contrary to the federal magistrate's decision, the Tribunal's decision was affected by jurisdictional error. I have done this by reference to the grounds of review relied upon before the federal magistrate. 6 The first ground raised below was a breach of s 424 of the Migration Act 1958 (Cth) ("Act"). The argument advanced by the appellant was to the effect that the Tribunal failed to comply with the requirements of s 424(3) of the Act. However, as the federal magistrate found, it is clear that s 424(2) and (3) were not engaged in this case. Accordingly, there is no substance to this ground of review. 7 The second ground raised below is not a ground of review at all. It seems to carry with it the implication that the Tribunal's decision ought to be set aside if it can be characterised as unreasonable in a general sense. This involves a legal misconception. It is not possible to characterise the decision as unreasonable in any relevant sense. It was open to a logical and rational decision maker to come to the same decision. 8 The third ground of review is little more than an assertion that the Tribunal should have accepted the appellant's claims and that because it did not do so, the decision was unjust. It too is based upon a legal misconception and invites an impermissible merits review. It does not constitute a proper ground of review and the federal magistrate was right to reject it. 9 The fourth ground of review is another assertion that the Tribunal should have accepted the appellant's claims and that the learned federal magistrate ought to have done the same. This too is not a proper ground of review and the federal magistrate was right to reject it. 10 Finally, the fifth ground of review amounts to an allegation that the Tribunal was actually biased in that it failed to make independent inquiries which (it is asserted) would have assisted the appellant's case. In the circumstances of this case there was no obligation on the Tribunal to make any such inquiries: see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [20] to [25]. Nor is there any basis to suggest that the Tribunal was biased or that it did not approach the review or the appellant's application for a protection visa with anything but an open mind: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] per Gleeson CJ and Gummow J. Conclusion 11 The appellant has failed to satisfy me that there is any error in the federal magistrate's decision. The appeal will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 28 May 2010