SZNJU v Minister for Immigration and Citizenship [2010] FCA 120 (22 February 2010)

Last Updated: 25 February 2010

FEDERAL COURT OF AUSTRALIA

SZNJU v Minister for Immigration and Citizenship [2010] FCA 120

Citation:	SZNJU v Minister for Immigration and Citizenship [2010] FCA 120
Appeal from:	SZNJU v Minister for Immigration and Citizenship [2009] FMCA 1114
Parties:	SZNJU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1388 of 2009
Judge:	BENNETT J
Date of judgment:	22 February 2010
Cases cited:	Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 applied SZNJU v Minister for Immigration and Citizenship [2009] FMCA 1114 affirmed Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 cited
Date of hearing:	22 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared in person assisted by an interpreter.
Solicitor for the First Respondent:	Mr B O’Brien of DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1388 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNJU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	22 FEBRUARY 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 1388 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNJU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	22 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Pakistan who arrived in Australia on 10 April 2008. He lodged an application for a protection visa which was refused by a delegate of the Minister. The appellant claimed to fear persecution from his wife’s family and family friends for his marriage in 2006 without their consent.
2. The appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision of the delegate. The appellant appealed to the Federal Magistrates Court by application under s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (the Act) for judicial review of the Tribunal decision. Federal Magistrate Emmett dismissed the application with costs.
3. The appellant now appeals to this Court. The grounds of his appeal are that the Federal Magistrate erred in failing to find that:
   1. It was open to the Tribunal to find that he was a refugee within the meaning of the Act.
   2. The Tribunal ought to have given him the benefit of the doubt in circumstances where the Tribunal entertained the possibility that his claims are plausible.
4. As to the first ground and the second ground insofar as it raises the decision of the Tribunal on the merits of the appellant’s claim, it is not for the Federal Magistrate or this Court to consider the merits of the appellant’s claims and to engage in merits review. The Federal Magistrate did not err in failing to find that the appellant was a refugee within the meaning of the Act.
5. To the extent that the second ground raises questions of the Tribunal’s conduct of the hearing, Emmett FM accepted that the Tribunal properly undertook the task with which it was jurisdictionally charged, by considering the claims by the appellant and the evidence in support of those claims. The appellant has not identified any aspect of his claims as made to the Tribunal that were not considered by the Tribunal.
6. The second ground is really a complaint about the process of fact finding by the Tribunal. The Tribunal first considered the appellant’s claims and then evaluated them. The Tribunal was not obliged to accept those claims, even if they were, as made, plausible. In any event, the appellant has not identified any facts about which the Tribunal expressed doubt. The Tribunal rejected the claims as it did not find the appellant to be a truthful or credible witness.
7. The Federal Magistrate was satisfied that the findings made by the Tribunal were open on the evidence before it. The Tribunal’s conclusions were based on its findings as to the credibility of the appellant, a matter for the Tribunal. The Tribunal found that the appellant was not a truthful or credible witness. The Tribunal found his evidence to be inconsistent and, when the Tribunal put those inconsistencies to the appellant, the Tribunal found his responses unsatisfactory. The Tribunal comprehensively rejected the appellant’s claims of ever having married without the consent of his family or his wife’s family and rejected the appellant’s claims of having suffered harm for that reason.
8. While there is no onus of proof in such administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 192 per Foster J), it is for the appellant to make out his case. While the Tribunal should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims, the Tribunal is not required to accept uncritically any or all of the allegations made by the appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 per Beaumont J). As Emmett FM observed at [47] the Tribunal understood the appellant’s claims, explored those claims at the hearing and had regard to all the material provided in support. The Tribunal put to the appellant matters of concern to it and noted his responses. It then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal.
9. The appellant appeared at the hearing of the appeal in person, by telephone, assisted by an interpreter. He submitted that the Tribunal did not consider his case correctly or perfectly. When asked to elaborate on that submission, he said that he had problems in Pakistan which the Tribunal did not accept. That raises a question of fact and is not susceptible of review.
10. He also said that at the Tribunal hearing the Tribunal asked for further evidence but he did not have such evidence with him and was not able to provide other material because his friend was out of the country. To the extent that the appellant had further material that he did not present to the Tribunal, the fact that the appellant did not adduce such evidence does not establish error on the part of the Tribunal. To the extent that the appellant says that the Tribunal sought further evidence, that is not supported by the Tribunal’s reasons. The Tribunal records that the Tribunal afforded an adjournment during the course of the hearing to enable the appellant and his advisor to consider adverse information that the Tribunal had put to the appellant. After the adjournment, further information was given by the appellant to the Tribunal. The Tribunal then asked the appellant if there was anything else he wanted to tell the Tribunal. As recorded by the Tribunal, the appellant claimed that he needed no further time to comment on or to respond to information put to him at the hearing. After the hearing, the appellant submitted his passport to the Tribunal.
11. The appellant has not established any error on the part of the Tribunal in its conduct of the hearing or in the opportunity given to the appellant to present his case.
12. The appellant has not substantiated the errors on the part of the Federal Magistrate asserted in the notice of appeal. No other error on her Honour’s part is apparent.
13. It follows that the appeal should be dismissed with costs.
    

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 24 February 2010