SZLES v Minister for Immigration and Citizenship

[2008] FCA 796

FEDERAL COURT OF AUSTRALIA

SZLES v Minister for Immigration & Citizenship [2008] FCA 796

SZLES and SZLET v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 229 OF 2008

JESSUP J
19 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 229 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLES
First Appellant

SZLET
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	19 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent fixed in the sum of $1,300.

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 229 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLES
First Appellant

SZLET
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	19 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are appeals from a judgment of the Federal Magistrates Court of Australia given on 12 February 2008 dismissing applications for unspecified remedies, pursuant to the jurisdiction of that court arising under s 476 of the Migration Act 1958 (Cth) (“the Act”), in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 12 July 2007 and handed down on 2 August 2007. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the provisions of the Act.

2. The appellants, who are husband and wife, came to Australia from India on 22 March 2007.  They lodged applications for protection visas with the Department of Immigration.  The appellant husband stated that he feared persecution from money lenders in the Rabari community in India after he borrowed 200,000 rupees and was subsequently defrauded by a friend’s friend, who failed to deliver his repayments.  When prompted by the Tribunal, he said that members of his family were of a different political persuasion to the Rabaris and had been attacked by them at elections a long time ago.  The appellant wife did not advance any independent claims of persecution under the Convention, but relied upon the circumstance that she was a dependant of the appellant husband.  I shall refer to him as the appellant. 

3. In the Federal Magistrates Court, the appellant advanced three grounds of alleged jurisdictional error on the part of the Tribunal, but only one of those grounds is presently relevant.  That ground stated:

   There was certain informations used by the tribunal without providing an opportunity to respond. The adverse informations used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The tribunal did not disclose the information in accordance with S 424A(1) of the migration act.

   The Federal Magistrate determined that ground in the following reasons contained in her published reasons for judgment on 12 February 2008:

   The third complaint in ground 1 appears to be an allegation of a failure to comply with s.424A(1) of the Act. In relation to the s.424A(1) complaint, there was no information that enlivened the obligations of s.424A(1) of the Act. The Tribunal’s subjective evaluation of the Applicant’s evidence and its assessment of the internal inconsistencies in the Applicant’s evidence is not information that enlivens the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; HCA 26 (13 June 2007)). The Tribunal’s reasons for affirming the decision under review were its adverse credibility findings and its finding that any harm suffered by, or likely to be suffered by, the Applicant had no Convention nexus. As stated above in these Reasons the findings of the Tribunal, including the adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons.

   Ground 2 makes a bare assertion that the Tribunal did not disclose information in accordance with s.424A(1) of the Act. The applicant was unable to identify any information which he alleged should have been provided to him in accordance with s.424A(1) of the Act. The s.424A(1) issue is otherwise dealt with at paragraph 24 above in these reasons.

4. In his Notice of Appeal in this court, the appellant relied upon a single grant, namely:

   The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

   (a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

5. The appellant filed written submissions in support of his appeal, but those submissions – although displaying manifest familiarity with a number of the decided cases in relation to migration law – had nothing at all to say about s 424A of the Act. Indeed, the factual recitation of the appellant’s circumstances as set out in the opening passage of those submissions give me cause to suspect that they were concerned not with the appellant, but with somebody else. Nothing which the appellant said in court this morning in his oral submissions dealt with the only ground of appeal upon which he has relied.

6. I have read the decision of the Tribunal. I am quite unpersuaded that the Federal Magistrate was in error in the way she disposed of so much of the appellant’s case before her as arose under s 424A(1) of the Act. Indeed, I agree with her Honour that there was nothing in the circumstances of the proceeding before the Tribunal which suggested that s 424A had any relevance at all.

7. The only submission of any substance made by the appellant this morning was that he was given insufficient time by the Tribunal to produce documents from India which would apparently have supported his case that he had been attacked at some stage by those who were demanding the repayment of their money.  He told me that he had requested the Tribunal to give him time to produce these documents, and that he had indeed been given some time, but that the time had been insufficient.  Despite my pressing him for an indication of the nature of the documents in question, the appellant was unable to provide any such particulars.  He went no further than to reiterate his statements that the documents would come from India, and that they would relate to the attacks to which he had been subjected. 

8. I drew the appellant’s attention to par 18 of the reasons of the Federal Magistrate which was in the following terms. 

   However, the Applicant stated that there were further documents in the nature of bank transfers and letters of threats that he had wished to submit to the Tribunal. The Applicant informed the Court that he had never raised the existence of these documents with the Tribunal, nor did he seek any adjournment from the Tribunal to provide any such material. Further, there is no evidence before this Court of the identity of particular documents that the Applicant would wish to have provided to the Tribunal; why the Applicant was not able to provide any such documents to the Tribunal; and any attempt made by the Applicant to obtain those documents. In the circumstances, it cannot be an error on the part of the Tribunal going to its jurisdiction for it to fail to have regard to documents that were not provided to it and about which it was not made aware.

   The applicant said that he had no submission to make on the subject of this paragraph.

9. The Federal Magistrate gave her reasons more than three months ago, and the appellant has appeared before me this morning with no further identification of the documents for the production of which he seeks further time, and without any application to place before this court any more satisfactory evidentiary basis for his request to have further time than that with which he appeared before the Federal Magistrate.  I agree with her Honour’s disposition of this aspect of the appellant’s complaint and, if anything, I would say that the passage of time since her Honour’s judgment has further undermined any case which he might have had to be given a further opportunity to produce other relevant documentation.

10. For the above reasons I propose to dismiss the appeals.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:
Dated:        29 May  2008

Solicitor for the First Appellant:	The first appellant appeared in person.  No appearance for the second appellant.
Counsel for the Respondents:	Ms B Rayment
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	19 May 2008
Date of Judgment:	19 May 2008