SZOLH v Minister for Immigration and Citizenship [2011] FCA 154 (16 February 2011)

Last Updated: 25 February 2011

FEDERAL COURT OF AUSTRALIA

SZOLH v Minister for Immigration and Citizenship [2011] FCA 154

Citation:		SZOLH v Minister for Immigration and Citizenship [2011] FCA 154
Appeal from:		SZOLH v Minister for Immigration & Anor [2010] FMCA 901
Parties:		SZOLH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1690 of 2010
Judge:		NORTH J
Date of judgment:		16 February 2011
Date of hearing:	16 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	30
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Ms E Baggett
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1690 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NORTH J
DATE OF ORDER:	16 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed;
2. The appellant pay the first respondent’s costs of the appeal;

THE COURT DIRECTS THAT:

3. Any reference in the transcript of proceedings to the name of the appellant be replaced with the words “the appellant”.
   

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 1690 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NORTH J
DATE:	16 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered by Smith FM on 12 November 2010. The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 April 2010. The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse the appellant a protection visa.
2. The appellant is a citizen of India who was born in 1987 and lived in Tamil Nadu in or near the city of Trichy. He claimed in a statement accompanying his visa application before the delegate and before the Tribunal a fear of persecution on the grounds of political opinion were he to return to India.

THE CLAIMS

3. The appellant said that in 2004 he met Vaico, who started the Tamil oriented political party Marumalarchi Dravida Munnetrra Kazhagam (MDMK) in opposition to the then major political party, Dravida Munnettra Kazhagam (DMK). He said that he was identified in the community as a supporter of the MDMK and that he worked essentially full time to promote the party in the town council elections in 2006. He said as a result of his work for the MDMK, he was targeted by supporters of the DMK. They blamed him for the success of the MDMK in one ward in the town council elections. It is noteworthy that the DMK was successful in the other five wards.
4. As a consequence of his work for the MDMK, he said that DMK supporters attacked him on several occasions in 2007 and again in 2008. He said that the police took no action against the attackers. At the same time, he was on several occasions taken by the police and accused of supporting the Liberation Tigers of Tamil Eelam (LTTE). On these occasions, he was assaulted, for instance, by having cigarette burns applied to his thighs. He suffered a loss of consciousness and serious injury. He suggested that the police were acting under the control of the DMK, when they accused him of supporting the LTTE. Eventually, under the pressure of these events, the appellant said he signed a written admission that he had assisted the LTTE. That caused him further problems within his own family and political party.

THE DECISION OF THE TRIBUNAL

5. In its decision made on 30 April 2010, the Tribunal said that whether the appellant had told the truth about his involvement with the MDMK was central to his application. The Tribunal recorded the exchanges which occurred during the hearing and which demonstrated that the Tribunal pressed the appellant heavily and with much detail about the circumstances of political life in Trichy at the time of the appellant’s allegations.
6. The Tribunal concluded that the appellant had not given truthful evidence about his involvement with the MDMK. It set out in its reasons the basis for that conclusion. For instance, it said that although the appellant claimed to be fully immersed in the affairs of the MDMK, he did not know that his local member in the national parliament in India was from the MDMK. The Tribunal said at [73]:

If he had genuinely been a supporter of the MDMK then I believe he would have been aware that his local MP belonged to the MDMK.

7. Then the Tribunal turned to the elections for the Legislative Assembly in Tamil Nadu which occurred in 2006. It concluded that the appellant knew nothing about these elections.
8. The Tribunal next addressed the evidence concerning the municipal council elections in which the appellant claimed to have taken part. It concluded that his evidence was hopelessly confused. For example, the appellant was not able accurately to say who was elected in that election in the ward in which he lived. The Tribunal concluded at [79]:

For the reasons given above I do not accept that the applicant was involved with the MDMK as he has claimed. As I put to him I consider that this means that his claims that he was persecuted by rival political parties and the police and the security forces in Tamil Nadu because of his involvement in the MDMK are a fabrication. I do not accept that the applicant is a witness of truth. I do not accept that he let houses to Sri Lankan refugees in the course of his business or that he was accused of supporting the LTTE as he has claimed. The applicant claimed that all these things had happened because the DMK wanted to use him as a ‘trump card’ to destroy the MDMK but for the reasons given above I do not accept that the applicant was involved with the MDMK as he has claimed.

9. In the following paragraph, the Tribunal dealt with a document which was produced by the appellant to substantiate the allegation that he had received injuries in one of the incidents alleged. The Tribunal said at [80]:

As I put to the applicant, even if he was assaulted by police officers as he claims I do not accept in light of my findings above that this had anything to do with his involvement in the MDMK. The applicant produced a ‘Patient Ticket’ to the Department indicating that he had been admitted to the Government Hospital in Srirangam on 10 March 2007 as a result of an assault and discharged on 16 March 2007. When he underwent the medical examination in connection with his application for a protection visa he drew attention to the fact that he had a cigarette butt injury to his thigh ... Since I have rejected the applicant’s evidence with regard to his involvement in the MDMK I do not accept that he sustained these injuries for reasons of his involvement in the MDMK.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

10. The appellant then applied for a review of the Tribunal's decision by the Federal Magistrates Court. In the judgment of the Federal Magistrates Court, the grounds of the application were set out at [16] as follows:

1. The Tribunal constructively failed to exercise its jurisdiction.

Particular:
The Applicant provided documents to the Tribunal to corroborate his claims. In particulars the applicant provided evidence that he was admitted in hospital as a result of an assault. The Tribunal failed to engage in an active intellectual process in respect of those documents. The Tribunal ultimately gave no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents of the documents. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the document corroborated his claims.

2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence 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.
   
11. Additional grounds were contained in a written submission, which stated at [17]:
    1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the High Court in SAAP.
       
    2. The Tribunal exceeds its jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
       
    3. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my claims in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look
       

Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to return back to India.

Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims.

12. The federal magistrate noted that, at the hearing, the appellant did not address the contentions contained in the written documents, but simply repeated his concern that he did not wish to go back to India. The federal magistrate also indicated that he declined an application by the appellant for more time to obtain additional evidence concerning his claims. The federal magistrate said this information could not have assisted the appellant’s case in the Federal Magistrates Court.
13. The federal magistrate then dealt with each of the arguments set out in the written grounds of the application. He held that the Tribunal had engaged in an active intellectual process in relation to the document concerning the allegation of hospitalisation for injuries received in one of the incidents alleged by the appellant. The federal magistrate said that it was open to the Tribunal to find, as it did, that the document did not establish the claim of involvement in the political activities of the MDMK even if it established that the appellant had suffered an injury. The Tribunal was entitled to find on the evidence as a whole that the appellant had not been involved in political activities as he alleged.
14. The federal magistrate then said that the grounds numbered 2 and 4 appear to have been taken from a precedent and they were not explained or particularised. In any event, he said that the Tribunal had taken into account the claims made by the appellant and the evidence in support.
15. The federal magistrate then dealt with the written submission and determined in relation to the first paragraph that there was no information within the meaning of s 424A(1) of the Migration Act 1958 (Cth) (the Act), which the Tribunal was bound to provide to the appellant. In relation to the second paragraph, which alleged a failure to investigate the claims, the federal magistrate determined that the Tribunal was not under any obligation to undertake such investigation, and in relation to the balance of the document, the federal magistrate was unable to glean any possible ground of review.

THE NOTICE OF APPEAL

16. The appellant then on 13 December 2010 filed a notice of appeal in this Court. The grounds of appeal were stated as follows:
    1. The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.
       
    2. 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 Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstance and consequences.
       
17. Having observed in a number of other appeals grounds in identical terms and with the same paragraph numbering which omits paragraph 3, I was curious to determine the source of such grounds. I was assured on a number of occasions by the appellant that he crafted them himself and had not obtained them from elsewhere. This is highly unlikely in view of the general use of the grounds.

CONSIDERATION

18. The paragraphs numbered 2 and 4 do not appear to raise any matters which might be the subject of judicial review. They are expressed with entire generality and with no reference to the particular circumstances of the appeal.
19. Paragraph 1 makes a general allegation of unreasonableness and seems to link it with the definition of persecution in s 91R of the Act. Again, the allegation is entirely unparticularised and standing on its own does not disclose as a proper ground of appeal.
20. To the extent that paragraph 1 seeks to allege unreasonableness in the decision-making process, that allegation cannot be sustained in this particular case. The Tribunal formed the view that the appellant’s allegation of political involvement with the MDMK was not credible, based on his lack of knowledge of matters which would be known to persons with the alleged involvement. It cannot be said that this process of reasoning was unreasonable. Further, this ground was not taken before the federal magistrate, and because it is not sustainable, leave to argue it on appeal would be refused.
21. Although the appellant is highly articulate and fluent in English, he had the assistance of a Tamil interpreter at the hearing of the appeal in case he needed that assistance. The appellant addressed the Court at some length and made submissions additional to those based on the written grounds of appeal. His general submission was that the evidence which he gave was not fabricated and that he wanted a fair chance to save his life. He made a number of impassioned pleas to the Court for a second chance of a hearing before the Tribunal.
22. He said that he had obtained evidence yesterday from India which demonstrated that he was politically active. The appellant sought to rely on this document, but that tender was rejected. The document was in Tamil and was not therefore understandable by the Court. It apparently came from the party and explained his role in the party. The document was not before the Tribunal and could not therefore advance the appellant’s judicial review appeal. Furthermore, no explanation was given as to why the document appeared at such a late date.
23. The appellant arrived in Australia on 19 July 2008 and he made application for a protection visa on 29 August 2008. He was interviewed by the delegate on 22 October 2008. Even if it was not clear to him at the initial interview that he needed to gather all of his evidence, it must have been obvious to him after receiving the delegate’s decision that it was important for him to bring forward any proof of the allegations which he made. He is clearly an intelligent and articulate person. The need for evidence cannot have escaped him. There is no ground for the admission of this document on the appeal.
24. The appellant also sought to tender two other documents on the appeal. This application was also rejected. The documents were not provided to the Tribunal. They were, however, apparently in existence in March 2007, well before the Tribunal hearing. One document is a print out from a counter-terrorism blog. The other is an extract from an internet site of One India News. The fact that they were not before the Tribunal is in itself fatal to the application to rely upon them on appeal. However, there are other reasons why the tender was rejected.
25. One allegation made by the appellant in his original application was that he was detained on 9 March 2007 by security officers in relation to the case of Arul Nathan. Arul Nathan was alleged by the security officers to be a Tamil Tiger and the security officers alleged that the appellant had assisted him by renting a house for him. The appellant said that when he was detained on this occasion he was tortured by a cigarette burn, that he lost consciousness, and was admitted to hospital.
26. The two other documents which he sought to tender on the appeal were said to substantiate his allegation. It is impossible to see how that is so. The documents relate to, or report, the arrest of two Sri Lankan Tamils, neither of whose name approximates Arul Nathan. The two documents are not relevant to the allegation made by the appellant.
27. Furthermore, the appellant was not disbelieved directly on the occurrence of these events. His case was rejected on the basis that whatever had happened to him was not a result of political involvement. Nothing in these documents assists in demonstrating any error on the part of the Tribunal in relation to those evidentiary findings.
28. The final allegation which might be gleaned from the appellant’s oral submissions is an allegation that the Tribunal did not investigate his case. This was a matter raised, albeit without particulars, before the federal magistrate. The appellant seemed to be suggesting that there was evidence which would demonstrate his political involvement, and if the Tribunal had taken the trouble, it could have discovered that evidence. The Tribunal had no obligation to do so in the circumstances of this case. It formed a firm view as a result of the questioning of the appellant that the starting point of his claims could not be made out. There was no error committed by the Tribunal in not taking that issue further. It is a matter for the appellant to make his case before the Tribunal.
29. The appellant made submissions with great energy and insistence. He said that the evidence clearly established his political involvement and that he had failed to produce that evidence because he was in a state of confusion and nervousness. It was explained to the appellant that this Court, in conducting a judicial review, is not able to reinvestigate his claims from inception. It was explained to the appellant, however, that if he wished to pursue his very strongly held view that he could now produce evidence to establish his claims, then he might wish to apply to the first respondent to bring a further application.
30. It follows from these reasons that the appeal must be dismissed.
    

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 25 February 2011