FEDERAL COURT OF AUSTRALIA SZSIU v Minister for Immigration and Border Protection [2013] FCA 1222 Citation: SZSIU v Minister for Immigration and Border Protection [2013] FCA 1222 Appeal from: SZSIU v Minister for Immigration and Anor [2013] FCCA 574 Parties: SZSIU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1241 of 2013 Judge(s): BUCHANAN J Date of judgment: 21 November 2013 Legislation: Migration Act 1958 (Cth), ss 430(1), 431, 431(2) Date of hearing: 6 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant appeared in person with an interpreter Solicitor for the First Respondent: Mr A Markus, Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1241 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSIU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 21 NOVEMBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1241 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSIU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 21 NOVEMBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant arrived in Australia on 8 June 2012 and lodged an application for a protection visa on 28 June 2012. He is a citizen of Chad. The application for a protection visa was refused by a delegate of the first respondent on 1 August 2012. The appellant then applied to the Refugee Review Tribunal ("the RRT") for review of the delegate's decision. 2 On 28 November 2012, the RRT affirmed the delegate's decision not to grant the appellant a protection visa. The RRT conducted a hearing on 21 September 2012, which the appellant attended together with a representative. The proceedings before the RRT were assisted by an accredited interpreter. At the hearing, the appellant presented the RRT with a number of documents. The documents presented by the appellant raised questions about their reliability. The RRT recorded: 41. The Tribunal alerted the applicant that it would need to assess all his documents, for their genuineness and the reliability of their contents. In this context, it noted that the applicant had already appeared to indicate that his Chadian passport contained false information about his place of birth (Jeddah, rather than N'Djamena). It advised that he should provide certified translations of any documents that he wished to rely on in his claims for protection. … 49. Before proceeding to discuss the applicant's claims for protection, the Tribunal registered concern that the applicant's documents presented 2 completely different scenarios, one as a person born in 1982, and another as a person born in Jeddah in 1990. Adding to its concerns is that he now claimed that both scenarios were wrong, as he was actually born in Chad. The Tribunal noted that, although the applicant had tried to explain these anomalies, his past reliance on fraudulent or incorrect papers raised questions about whether it could place weight on any of them at all. 3 The RRT, in its decision, then recorded the appellant's claims and evidence in some detail. A submission to the RRT dated 5 October 2012 forwarded a number of further documents to the RRT. The RRT explained in detail the concerns it had about the documents upon which the appellant relied and the evidence which he gave at the hearing before the RRT. In the view of the RRT, the appellant's evidence raised questions about his overall credibility. The RRT, however, dealt with the specific claims for refugee protection, recording: 105. The Tribunal found the applicant to be an articulate, well-educated witness, and it formed the impression that he had done considerable on-line research in preparation for the hearing. While he spoke fluently about the key elements of his claims for protection, however, the Tribunal observed that he was much less forthcoming when asked for further detail, and when reconciling the problematic aspects relating to his personal and family circumstances. 106. In assessing the applicant's claims, the Tribunal takes into account that the basic elements of his narrative and claims have been reasonably consistent. 4 Nevertheless, there were matters noted by the RRT which ultimately caused the RRT to find that the appellant was not credible. Those matters were set out in detail and summarised as follows: 110. In light of all the above concerns, the Tribunal concludes that the applicant is not a credible witness, and that his claims for protection based on the land dispute, including its ethnic/political dimensions, and the reputed political allegations, are not based on fact. 5 Other claims were then considered before the RRT recorded the following: 119. The Tribunal finds that the applicant, as a Chadian long-term Saudi resident, and a Gorane, has opted to migrate to another country rather than stay in Saudi Arabia or face his eventual return to Chad, which has very poor economic, political and social conditions. For the reasons given above, the Tribunal does not accept that the mere fact of being a Gorane, or a long-term Saudi resident, gives rise to a well-founded fear of persecution in Chad. 120. Having considered the applicant's claims individually and cumulatively, the Tribunal finds that he does not face a real chance of persecution for any Convention reason, if he returns to Chad, his country of nationality. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future. Complementary protection 121. The Tribunal accepts that the applicant may face challenges if he were to return to Chad, because of the poor living conditions in that country. For the reasons given above, it rejects his claims that Zaghawa neighbours and their allies (government officials or turncoat Gorane) have any adverse interest in him, for any reason. The Tribunal does not accept that his remaining attributes, such as his Gorane ethnicity and his past residency in Saudi Arabia would lead Zaghawa neighbours or local residents, the Chadian authorities or anyone to target him (including for reason of any imputed adverse political profile). The Tribunal does not accept that the difficult living conditions in Chad involve 'significant harm' as defined exhaustively in s.36(2A) of the Act. This is because, among other things, the Tribunal does not accept that he 'will be arbitrarily deprived of his life', that 'the death penalty will be carried out', or that the effect on the applicant of Chadian living conditions involves any intention to inflict harm, as required in the definitions of 'torture', 'cruel or inhuman treatment or punishment' or 'degrading treatment of punishment'. 122. The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Chad, there is a real risk of significant harm. 6 On 6 December 2012, the appellant filed an application in the Federal Circuit Court of Australia ("the FCCA") seeking judicial review of the decision of the RRT. The grounds of the application for judicial review were as follows: Migration Act was not observed properly and the RRT member was not acting in good faith in decision making process. The decision doesn't related to the subject matter of the legislation and the decision exceed the limit set out in the Constitution the RRT deprived me of natural justice [sic] 7 Each of the grounds was rejected by the FCCA for reasons which were clearly stated. The FCCA's conclusions were stated as follows: 57. A fair reading of the RRT's decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant and his migration agent at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant's responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT also identified with particularity the independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT's decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law. 58. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 8 On 1 July 2013, the appellant filed a notice of appeal in this Court. The grounds for appeal are stated as follows: 1. Migration Act 1958, s32(1)a, was not observed properly and the RRT member was not acting in good faith in decision making process. 2. The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in Commonwealth constitution. 3. The RRT deprived me of natural justice. 4. The RRT member did not act according to the law assessing the complementary protection criteria. [sic] 9 The grounds for appeal as stated do not identify any particular matter which would suggest error in the conclusions of the FCCA or jurisdictional error which might have been committed by the RRT. 10 The appellant did not file any written submissions in support of the appeal. At the hearing of the appeal, the appellant raised a number of issues by way of complaint about the decision or procedures of the RRT, although not specifically about the decision of the FCCA. 11 One complaint about the RRT was that it had "uploaded" information about the appellant to the internet sufficient to allow intelligence agencies in Chad to identify him and "blacklist" him. I take this to probably refer to some form of publication by the RRT of its decision. Although this matter does not bear upon the dispensation of the appeal, I raised it with Mr Markus, who appeared for the first respondent. Mr Markus directed my attention to ss 430(1) and 431 of the Migration Act 1958 (Cth), which are in the following terms: 430 Refugee Review Tribunal to record its decisions etc. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. … 431 Certain Tribunal decisions to be published (1) Subject to subsection (2), and to any direction under section 440, the Registrar must ensure the publication of any statements prepared under subsection 430(1) that the Principal Member thinks are of particular interest. (2) The Tribunal must not publish any statement which may identify an applicant or any relative or other dependent of an applicant. Note: Section 5G may be relevant for determining relationships for the purposes of this subsection. 12 Unsurprisingly, Mr Markus had no specific information about publication of any decision concerning the appellant, as he had no notice that a complaint would be made. The RRT decision in the present case contains many pieces of information which may serve to identify the appellant, or lead to inquiries which might do so, but I have no information about what editing was carried out (assuming the decision was published) to comply with s 431(2). 13 As I explained to the appellant, this complaint is not one which can affect the outcome of the appeal, but I think he is entitled to have it recorded that he raised it explicitly as a matter potentially affecting his future interests. 14 The appellant also complained about the indignity of detention and its effect on his psychological well-being. Again, that is a matter beyond the scope of the appeal. 15 The specific complaints about the decision of the RRT, which were addressed orally by the appellant through an interpreter, may be summarised as follows: (a) The RRT did not acknowledge or deal with the persecution of the appellant's tribe in Chad since 1990. (b) The RRT gave no logical explanation for the rejection of his claims. (c) The RRT's findings were based on suspicion and distrust rather than proof. (d) The RRT did not take seriously the appellant's claims for "complementary protection". (e) If he was returned to Chad, the appellant would face death, or torture and then death. 16 In my view, these complaints misstate, misunderstand or fail to acknowledge the findings made by the RRT. In substance, they amount to a challenge to the merits of the RRT decision, which, as I explained to the appellant, is only open to challenge in this Court (and in the FCCA) for error of jurisdiction. Nevertheless, I shall indicate in more detail why I do not accept any of the complaints made. 17 Contrary to the appellant's complaint in (a) above, the RRT explicitly acknowledged and accepted the appellant's tribal membership, and possible persecution of that tribe, in the following passages in its decision: 114. The Tribunal is prepared to accept that the applicant is of Gorane origin, and would be perceived as such in Chad. He mentioned the tribe's origins from around Moussoro, and explained the relationship between the Kreda and the Goran tribes, in apparently familiar terms. He referred to other features of the tribe, such as their physical features and dress, although the Tribunal has been unable to find any independent evidence to verify this. His mention that the tribe comprised 6.3% of the Chadian population suggested that at least some of his knowledge was the product of research, rather than direct personal knowledge. Despite this minor concern, the Tribunal is satisfied that he is a member of the Gorane ethnic group. 115. The applicant and the Tribunal referred to country information indicating that the Gorane and the Zaghawa are rival tribes form the north of the country, each making up just a small percentage of the overall population. They joined forces in 1982 to bring HabrÉ, a Gorane, to power, and the current president, DÉby, a Zaghawa, who overthrew the government in 1990. 116. The country information indicates, and the Tribunal accepts, that Chad is a largely tribal society, and that, after DÉby's ascendancy to power in 1990, the Zaghawa began to behave aggressively towards other groups, particularly at a local level. There are reports of discrimination, 'condescension, contempt and acts of violence'. The last of these arise in particular when racial or tribal tensions fuel competition for resources (such as land disputes). At the same time, as discussed at the hearing, political, personal and other factors often play a role in such disputes. The material indicates that the mere fact of being Gorane (or of being a non-Zaghawa) does not establish a real chance of persecution; rather the risk arises when there are additional factors such as an association with rebels or political dissidents, or involvement in disputes. (footnote omitted) 18 Contrary to the complaints recorded in (b) and (c) above, the RRT did give reasons for its findings and conclusions. Those reasons included, but were not confined to, doubts about the appellant's credibility and the reliability of the documents he submitted. The RRT is not obliged to uncritically accept claims made or evidence given by an applicant for a protection visa. Ultimately, the RRT must be satisfied that the conditions for the grant of such a visa are present before substituting a decision to grant a visa for a refusal to do so. The RRT decision discussed the appellant's claims, both general and particular, in some detail. It accepted some and was not prepared to accept others, for reasons which were stated. The appellant's complaint about the findings of the RRT, and the suggestion that the findings lack adequate logical support, are really arguments about merits, and not about jurisdictional error or about any failure by the RRT to understand or perform its statutory task. 19 As to the complaints recorded above as (d) and (e), it will be apparent from paragraphs 121 and 122 of the RRT decision, which were set out earlier, that the RRT gave specific attention to the appellant's claims for complementary protection. I do not accept that the RRT did not take those claims seriously. 20 The challenge which the appellant has attempted to pursue in the FCCA and in this Court is, in substance, a challenge to the merits of the assessment made by the RRT of his claims for a protection visa. Such matters are beyond the province of this Court and are beyond the scope of the proceedings commenced in the FCCA. There is no apparent substance in any of the grounds of appeal in this Court, and the appeal must be dismissed. 21 It is appropriate to dismiss the appeal with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 21 November 2013