Federal Court Rejects Refugee Visa Appeal

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [2009] FCA 1490

[APPELLANT] v [NAME] TRIBUNAL

NSD 1035 of 2009

SPENDER J

24 NOVEMBER 2009

[APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1035 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: [APPELLANT]

Appellant

AND: [APPELLANT] FOR IMMIGRATION AND CITIZENSHIP

[APPELLANT] TRIBUNAL

[APPELLANT] OF ORDER: 24 NOVEMBER 2009

[APPELLANT]

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the [APPELLANT] of and incidental to the appeal, to be taxed if not agreed. 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 NSD 1035 of 2009

general division

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

[APPELLANT]

Appellant

AND: [NAME]

[APPELLANT] TRIBUNAL

[APPELLANT]

JUDGE: SPENDER J

DATE: 24 NOVEMBER 2009

PLACE: [APPELLANT] FOR

JUDGMENT 1 This is an appeal from the judgment of [APPELLANT], given on 28 August 2009 in [APPELLANT]. 2 The appellant is a male citizen of India born in 1987. He claimed to fear persecution from the [NAME], and its student organisation, the [COMPANY]. He arrived in Australia on 8 July 2008. 3 On 21 August 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship. 4 A delegate of the [APPELLANT] refused the application for a protection visa on 19 November 2008. On 15 December 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. On 17 March 2009, the Tribunal affirmed the decision of the delegate. 5 The appellant applied to the Federal Magistrates Court for a review of the Tribunal's decision on 16 April 2009. On 28 August 2009, [NAME] dismissed the application. 6 The Notice of Appeal to this Court, filed on 18 September 2009, contains two grounds:

1. The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal, [ADDRESS] below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.

2. T[h]e Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal. 7 The only oral submission in support of those grounds made by the appellant to the Court today is a repetition of his claims that he would suffer harm should he be returned to India. 8 The Tribunal in its decision accepted that the appellant was a member of the [NAME] ([NAME]), and that he was involved in a violent incident in August 2005 that was reported to the police, and in which he was injured. 9 However, the Tribunal concluded that the appellant was not a credible witness and that he fabricated a story around the incident for the purposes of his protection visa application. The Tribunal rejected the appellant's claims raised for the first time at the Tribunal hearing. In particular, it rejected his claim that he was involved in an instance which led to a murder, and his claims that he was later assaulted and/or threatened in Madras, Mumbai, or Kerala on his return. 10 The Tribunal therefore did not accept that he departed India because of a fear arising from such assaults and threats. The Tribunal was not satisfied that he had a well-founded fear of persecution for one or more of the Convention reasons. 11 The grounds of appeal before the Federal Magistrates Court were:

1. Jurisdictional error 2. [NAME] of procedural fairness;

3. Breach of natural justice 12 [NAME] found that those grounds did not disclose a particularised error capable of review by the Federal Magistrates Court. Her Honour noted that the Tribunal put to the appellant inconsistencies in his oral evidence to the Tribunal, his written claims and his interview with the delegate of the [APPELLANT]. 13 [NAME] [APPELLANT] was satisfied that the Tribunal's findings were open to it on the evidence before it for the reasons which the Tribunal gave, which included its adverse credibility findings. 14 The two grounds of appeal to this Court are as I have set out above. I accept the submissions on behalf of the [APPELLANT], that as the appellant's grounds of review before the Federal Magistrates Court were entirely unparticularised, and the appellant made no substantial oral or written submissions in support of those unparticularised grounds, the appellant's allegation that [APPELLANT] FM failed to consider the grounds raised by the appellant is without substance. 15 The second ground of appeal amounts to no more than an attempt to engage the Court in impermissible merits review. It does not identify any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. 16 For these reasons the appeal must be dismissed. 17 The orders of the Court are:

1. The appeal be dismissed.

2. The appellant pay the costs of the [APPELLANT] of and incidental to the appeal, to be taxed if not agreed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate: Dated: 11 December 2009 Counsel for the Appellant: [redacted]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Date of Hearing: 24 November 2009

Date of Judgment: 24 November 2009