SZJVU v Minister for Immigration and Citizenship

[2007] FCA 1134

FEDERAL COURT OF AUSTRALIA

SZJVU v Minister for Immigration and Citizenship [2007] FCA 1134

SZJVU v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File No NSD 815 of 2007

FINN J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 815 OF 2007

BETWEEN:	SZJVU Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	FINN J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs fixed in the amount of $1,000.00.

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	NSD 815 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJVU Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	FINN J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against an order of a Federal Magistrate summarily dismissing an application for judicial review of a decision of the Refugee Review Tribunal refusing to grant the applicant a Protection (Class XA) visa.  Leave is required as such an order is interlocutory:  see Federal Court of Australia Act 1976 (Cth) S 24(1A). The applicant is an Indian national whose claims of fear of persecution are for reasons of political opinion.

2. The basis of the Tribunal’s rejection of the application was, as the Federal Magistrate correctly apprehended, because the applicant (an Indian national) was not believed.  The following excerpts from the Tribunal’s reasons encapsulate its reasoning:

   “The applicant was unable to demonstrate at interview any meaningful grasp of the rationale of the Peoples War Group (PWG), the militant arm of the Communist Party of India (Marxist-Leninist), for which he had claimed to have worked for many years.  He knew nothing about the PWG’s merger with another Maoist group in 2004, a major political event for the Maoists in India.  He was extremely vague about what exactly he did on behalf of the PWG.  The applicant’s evidence relating to his father-in-law was highly inconsistent, the applicant having claimed that this man threatened to have him killed and on one occasion arrested on the one hand, and on the other paid for him to go to Singapore on a trip and then to come to Australia.  The applicant was equivocal about his religious beliefs.  After he had sworn an oath on the Hindu holy book at the Tribunal hearing, and stated that he was Hindu, it was put to him that Maoist communists were unlikely to be religious.  He then said that he wasn’t really religious, but his wife was.  While discrepancies in his evidence between what was written in his Protection Visa application, and his subsequent evidence to the Tribunal were put to the applicant in accordance with s 424A of the Act, the applicant on 19 October 2006 wrote to the Tribunal asking for an extension of time saying that supporting documents had not been received from India.  The applicant had not been asked for supporting documents, but had been asked to provide comments on discrepancies in his evidence, most crucially a key claim not made in his Protection Visa application, that he had been imprisoned from December 2002 to September 2004, a claim made both orally and in writing to the Tribunal.  He has not provided any explanation to date.  The Tribunal finds that the applicant has fabricated his central claim to have been a member of the PWG, CPI (M-L), and rejects his claims to have suffered serious harm in India as a result of his political opinion as an adherent of this group.
   …
   The Tribunal rejects the applicant’s claim to have been detained from December 2002 until September 2004. 
   …
   The Tribunal is not satisfied that the applicant has suffered Convention-based persecution in the past.  It is required to consider whether there is a real chance that he will be persecuted if he returns to India in the foreseeable future.
   …
   The Tribunal does not accept that the applicant has ever been involved with the CPI (M-L) and it therefore does not accept that he will be at risk of serious harm because of this involvement if he returns to India in the foreseeable future.
   …
   The applicant has put forward no evidence which has satisfied the Tribunal that he has ever been subjected to serious harm for any reason, including personal reasons.  In relation to his father-in-law, the applicant appears to have benefited from his largesse, whatever motivated it, than to have incurred any penalties because of him.  The Tribunal does not accept that the applicant has been harmed by his father-in-law, or that he would be harmed if he returned to India.”

3. The application to the Federal Magistrates Court contained eight grounds of review.  Additionally, the written submissions purported to provide particulars of an allegation of actual bias.  The last of these was rejected there being no particulars capable of supporting the allegation. 

4. His Honour dealt with and rejected each of the eight grounds as follows. 

   1.Grounds 1 and 2 alleged that the Tribunal failed to see that the applicant satisfied the definition of “refugee” in the Convention and the key elements of that definition.  Neither ground was meaningfully particularised.  Neither ground had any resonance in the Tribunal’s reasons.  It expressly considered the definition of “refugee” and it applied the correct principles.  It did not misapprehend s 91R of the Act.  The grounds did not betray any understanding of why the visa application failed. 

   2.Grounds 3 and 5 in different ways attacked the conduct of the review hearing.  Ground 3 complained of the Tribunal’s failure to consider the matter on the merits and that advantage should not have been taken of the applicant’s confusion at the hearing.  There was no evidence to support either of the assertions made.  There was, as the Federal Magistrate noted, an interpreter at the hearing, the applicant was given time to present oral arguments;  and the Tribunal discussed with him the inconsistencies in his evidence.  Equally the Tribunal sent a s 424A notice to the applicant as the above quoted paragraph indicated.  The assertion that the matter was not considered on the merits is belied by the actual course taken by the Tribunal in the exchanges with the applicant at the hearing which it outlined in its reasons.  These demonstrated an acute appreciation of the applicant’s claims.  The Tribunal simply was not obliged to accept the applicant’s version of events, the moreso given the clear reasons the Tribunal had for rejecting them.  Ground 5 simply asserted the applicant had been denied a fair and proper trial and he had been denied the principles of natural justice.  There was no foundation whatever for this claim.

   3.Grounds 6, 7 and 8 were simply attacks on different aspects of the Tribunal’s fact findings and conclusions.  The Federal Magistrate correctly concluded that none of these were tenable and they did not disclose any jurisdictional error. 

   4.Ground 4 dealt with the Tribunal’s rejection of a request made by the applicant for time to provide documentation in response to the s 424A notice.  That notice was sent by the Tribunal on 26 September 2006 and invited the applicant to comment on adverse information.  He was required to respond by 20 October 2006.  By letter dated 19 October 2006 the applicant requested more time because he was seeking additional supporting documents from India that had not been received.  The Tribunal dealt with this matter in the paragraph I have quoted above.  Consistent with the discretion given to it under s 424B(4) of the Migration Act it could not be said that the Tribunal’s discretion miscarried in this matter.

   THE PRESENT APPLICATION

5. The Draft Notice of Appeal sets out six grounds of appeal to which I will make reference below.  The accompanying affidavit does no more than baldly assert that the Federal Magistrate did not consider his application and refers, in a brief paragraph, to aspects of his evidence in support of his claim. 

6. The first of the grounds, numbered ground 2, simply states, in essence, that the application was rejected as no ground for relief was found.  Ground 3 alleges the application was dismissed without considering “the legal and factual errors” contained in the Tribunal’s decision.  Ground 4 alleges legal, factual and jurisdictional error of the Federal Magistrate by not applying the principles laid down by the Full Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. I simply note in passing that that decision was concerned with the issue of internal protection and relocation in the country of origin, a matter not in issue in the proceeding before the Tribunal. Ground 5 asserts that the Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of “my circumstances”. Ground 6 is an unparticularised assertion of reliance by the Tribunal on irrelevant questions at the hearing and of its ignoring the applicant’s political profile. The final ground raises what is described in the Draft Notice of Appeal as a “Muin” allegation: cf Muin v Refugee Review Tribunal (2002) 190 ALR 601; seemingly on the basis that he, the applicant, had been misled into believing that the Tribunal had read some information which had been in Part B documents.

7. There is manifestly no arguable ground of appeal in any of the above.  The first ground is perfectly correctly stated.  The Federal Magistrate did fail to find any jurisdictional error but for the reason that there was none there to be found.  The second ground, that the Federal Magistrate did not consider the Tribunal’s decision, is belied by the very terms of the Federal Magistrate’s reasons for decision.  The Randhawa ground is completely irrelevant to the present matter.  The failure to take into account the gravity of the applicant’s circumstances ground is simply a challenge to fact finding as also is the supposedly irrelevant consideration ground.  It is no more than an attack on fact findings and in particular on the fact that he was disbelieved.  Finally, the “Muin” ground simply has no foundation in the material that is before me.  No bases for it was suggested by the applicant.  The appellant did put on written submissions.  In this he purported to raise a new ground of actual bias.  The particulars relied upon are no more than assertions that the findings made and reasons given were not properly justified by the Act and, though clearly without foundation, that his claims were rejected without consideration of his oral evidence.  I have not given leave for this matter to be raised.  In the context of this matter, this is too lately raised and an offensive claim.  Otherwise, the submissions have been entirely unhelpful.  They bear little obvious relationship to the grounds of appeal, although they do contain what appears to be the contemporary folk law of costs on what constitutes arguable (though not necessarily intelligible) bases for challenging Tribunal reasons. 

8. Accordingly, as I am not satisfied that (a) the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court, and (b) that substantial injustice would result if leave were refused supposing the decision to be wrong, I refuse the present application for leave. 

9. The order of the court will be the application for leave to appeal be dismissed and that the applicant pay the respondent’s costs fixed in the amount of $1,000.00.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        2 August 2007

The Applicant appeared in person.
Counsel for the Respondent:	Ms B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 August 2007
Date of Judgment:	2 August 2007