SZHVX v Minister for Immigration and Citizenship

[2007] FCA 1272

FEDERAL COURT OF AUSTRALIA

SZHVX v Minister for Immigration & Citizenship [2007] FCA 1272

SZHVX AND SZHVY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD947 OF 2007

JESSUP J
8 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD947 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHVX
First Applicant

SZHVY
Second Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	8 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applications be dismissed.

2.The applicants pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD947 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHVX
First Applicant

SZHVY
Second Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	8 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court are two applications for leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia given on 28 May 2007 dismissing, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), amended applications for writs of certiorari, mandamus and prohibition directed to the Refugee Review Tribunal (“the Tribunal”) and the respondent Minister in relation to a decision of the Tribunal given on 23 February 2007 in which the Tribunal affirmed decisions previously made by the delegate of the respondent Minister to refuse to grant protection visas to the applicants pursuant to s 36 of the Migration Act 1958 (Cth) (“the Act”).

2. The test which must be applied on an occasion such as this is the two-fold one referred to in the judgment of the Full Court in Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 398-400, namely, whether the decision sought to be appealed is attended with sufficient doubt to warrant its reconsideration by this court, and whether substantial injustice would result if leave to appeal were refused, supposing that decision to be wrong.

3. According to the decision of the Tribunal, the applicants are husband and wife from India, who arrived in Australia in March 2005. The claims of the applicant husband were based upon the proposition that he was an activist within a political organisation in India known as BJP, and that he was of the Hindu religion.  It was suggested that members of the Congress Party in India and Muslim fundamentalists had been targeting him with the intention of causing him serious harm since 2002.  The claims of the applicant wife were not separate from those of her husband, but were based upon the prospect that he would succeed in obtaining a protection visa himself.  I shall refer to the applicant husband as the applicant.  The Tribunal summarised its findings in the following paragraph, which appears towards the end of its written decision:

   The Tribunal accepts that the applicant operated the company referred to in his evidence before the Tribunal.  However, the Tribunal is not satisfied that the company folded because of threats from Congress members and Muslims.  The Tribunal does not accept that the applicant was an active member of the BJP as claimed.  The Tribunal is not satisfied that the applicant has suffered any serious harm.  The Tribunal does not accept that the applicant was the subject of threats from 2002, for political or religious reasons, that he was the victim of an assault in 2003 or that his property was damaged in 2003.  There is no credible evidence upon which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to India. 

   As a result of those findings, the Tribunal declared that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

4. In his amended application for certiorari, mandamus and prohibition in the Federal Magistrates Court, the applicant relied upon three grounds. He relied first upon what was said to have been a failure by the Tribunal to comply with s 424A of the Act. That ground appears to have been based on the suggestion that the Tribunal had reference to the departmental file and to the applicant’s protection visa application for the purpose of finding inconsistencies between the material in those documents and the evidence given by the applicant at the hearing before the Tribunal, such as would affect the Tribunal’s assessment of the applicant’s credibility. There is no doubt but that the credibility of the applicant was a significant factor in the Tribunal’s disposition of the application for review, and that, if it had failed to comply with s 424A, that would have been an important omission.

5. The applicant relied secondly upon what was said to be the manifestly unreasonable, and therefore procedurally unfair, course which was followed by the Tribunal in relation to a letter which was produced by the applicant from a Mr Patel in support of the applicant’s claims that he had a fear of the kind referred to in the Convention.  The Tribunal dealt with that letter in the following paragraph of its decision:

   In making the above findings the Tribunal had regard to the evidence in the letter from Mr Patel.  However, given the degree of the credibility problems with the evidence of the applicant, the Tribunal cannot give any weight to the statements of this witness.  In light of the fundamental lack of credibility within the applicant’s evidence the Tribunal cannot be satisfied that the statements in the letter are true. 

6. The applicant thirdly claimed in his grounds in the Federal Magistrates Court that by reason of the errors referred to in the first two grounds, to which I have referred, the Tribunal failed properly to apply the “real chance” test by reference to which the questions arising under s 91R of the Act ought to have been addressed.

7. In the show cause hearing in the Federal Magistrates Court the Magistrate dealt with each of the grounds advanced on behalf of the applicant. First, in relation to the s 424A ground, the Magistrate held that the Tribunal’s findings on the matter of credibility were to no extent based upon inconsistencies between what the applicant said at the hearing and what had been contained in his protection visa application, or was otherwise on the departmental file. The Magistrate said that the factors which caused the Tribunal to take an adverse view of the applicant’s credibility were based upon information given to the Tribunal by the applicant for the purposes of the review which it was conducting and, therefore, were excluded by the operation of s 424A(3)(b) of the Act.

8. Secondly, the Magistrate dealt with the letter of support from Mr Patel, and with the proposition that the way in which the Tribunal had dealt with that letter was manifestly unreasonable.  He held that there was nothing unreasonable, or otherwise unlawful, about the manner in which the Tribunal dealt with the letter.  That holding was necessarily based upon the fact that the Tribunal had, independently of the letter, disbelieved the substantial underlying case which was put to it by the applicant. 

9. Thirdly, the Magistrate dealt with what was said to have been the Tribunal’s failure properly to apply the “real chance” test. He said that this ground was nothing more than an attempt to re-contest the merits of the Tribunal’s decision and that there was no arguable breach of s 91R of the Act.

10. The applicant has filed a draft Notice of Appeal in support of his application for leave to appeal in this court.  In that notice he re-agitates the first and second, but not the third, of the grounds which he advanced before the Federal Magistrate.  Insofar as he does re-agitate each of the first two grounds, there is nothing in the draft notice which identifies an alleged error made by the Magistrate other than a broad assertion in each case that the Magistrate was in error. 

11. Dealing first with the ground which relies upon what is said to have been a failure to comply with s 424A of the Act, I note that the applicant’s written submissions, filed in this court on 3 August 2007 in support of the application, make no reference to this ground and advance no argument about it. It seems to me that the ground is without substance, and that the Federal Magistrate was correct in the way he disposed of the ground in the proceeding before him.

12. In relation to the suggestion that the way in which the Tribunal dealt with the letter from Mr Patel was manifestly unreasonable, the applicant made the following submission:

    The Appellant claims that the Tribunal did not find the letter per se was not fabricated nor created by the Appellant to tailor his claims despite it had some credibility problems with the Appellant’s evidentiary problems.  The Appellant claims that the total disregard of the plausibility of the comments of the letter was unreasonable and procedurally unfair.  The applicant claims he was denied procedural Fairness when the oral or written evidence by the appellant was taken in that way. 

    I agree with the way in which the Magistrate disposed of this point.  I do not think there is any basis upon which it could be said that the Tribunal’s decision in this respect was procedurally unfair.  The Tribunal received the letter into evidence before it.  It considered the terms of the letter.  It recognised that they were supportive of the applicant’s case and it placed them on the scales with the other material which it had before it.  In doing so, it was entitled to take into account the findings, which it independently made, as to the credibility of the broad propositions which underlaid the applicant’s case.  Given that the letter itself was obtained by and put before the Tribunal by the applicant, the Tribunal was, in my view, entitled to disregard the letter if it formed the view, which it plainly did, that it could not rely upon the applicant’s tender of the letter as a factually sound component in the case upon which he relied. 

13. In his written submissions made in this court, the applicant seeks to rely upon a number of other propositions about the Tribunal’s disposition of the matter before it, which were not advanced in the proceedings before the Federal Magistrate.  It has been put to me on behalf of the respondent Minister, and I accept, that I should permit the applicant to proceed in this way only if I form the view that the submissions and, therefore, the proposed grounds, were of substance and materially improved the prospects of his succeeding on the present application.  I do not think that they are or do.  For the most part they appear to have been crafted with little or no attention to the details of the present case or to the actual disposition of the review by the Tribunal.  I do not propose to make reference to these arguments and propositions in terms, but I accept the submissions made on behalf of the Minister that, however one looks at them, either separately or together, they do not go any way towards improving the prospects of the present application. 

14. In the circumstances, I take the view that the judgment of the Federal Magistrate and the reasons upon which it was based, are not attended with sufficient doubt to warrant reconsideration by this court.  I suppose I should accept that, if the Magistrate were wrong, the dismissal of the present application would visit substantial injustice upon the applicant but, taking the view, as I do, that the judgment of the Magistrate is not only devoid of such doubt as is referred to by the Full Court in Decor Corporation but is clearly correct in every relevant respect, it is hard to see how substantial injustice would arise from the refusal of the present application. 

15. For those reasons, I propose to refuse the application of the applicant, and it follows that the application of the applicant wife should also be refused. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        20 August 2007

Counsel for the Applicants:	The first applicant appeared in person and on behalf of the second applicant
Counsel for the Respondents:	Ms Z McDonald
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	8 August 2007
Date of Judgment:	8 August 2007