SZLGA v Minister for Immigration and Citizenship

[2008] FCA 884

FEDERAL COURT OF AUSTRALIA

SZLGA v Minister for Immigration and Citizenship
[2008] FCA 884

SZLGA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2424 OF 2007

RARES J
8 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2424 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	8 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,100.

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 2424 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	8 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court dismissing the applicant’s claim for constitutional writ relief on the ground that it did not raise an arguable case:  SZLGA v Minister for Immigration [2007] FMCA 1992. The applicant claimed that he was an active member of the Indian National Lokdal Party and had been threatened and assaulted by members of the Congress Party in his home in India. He also claimed to have been persecuted because he belonged to the Jat ethnic group.

2. The draft notice of appeal asserts three grounds. First, that the trial judge failed to find an error of law, jurisdictional error or a breach of the requirements of procedural fairness in the tribunal’s decision. That is undoubtedly correct. And it followed, because, so far as his Honour saw and I can see from the material before me, there was no such error of law, jurisdictional error or failure to accord the applicant procedural fairness. After the Refugee Review Tribunal had invited the applicant to a hearing pursuant to s 425(1) of the Migration Act 1958 (Cth), the applicant did not appear at the hearing or communicate with the tribunal to seek an adjournment.

3. The tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, as it was authorised to do under s 426A(1) of the Act.

4. Before the trial judge, the applicant explained that he had been aware of the hearing before the tribunal but had had a problem, which his Honour understood to be a problem with “food” on that day, and could not attend.  He told his Honour that he did not contact the tribunal to explain his absence or ask for a rescheduled hearing.  In addition, his Honour noted that the appellant had presented no sworn evidence about those matters or any medical report.  Even if those matters had been proven to his Honour, they would not have given rise to an arguable ground of jurisdictional error based on any defect in the procedures followed by the tribunal.

5. Before me, the applicant said that he had had a hurt leg and that he had sprained it and was in too much pain to be able to walk.  It may well be that during the course of the hearing before his Honour, the word “foot” rather than “food” was used.  But, whatever the reason for the applicant’s non-attendance before the tribunal, he has accepted, both before his Honour and myself, that he did not contact the tribunal at the time and explain his difficulty in attending the hearing.

6. In those circumstances, the tribunal was entitled to proceed as it did under s 426A(1) to arrive at its decision.  I can see no arguable ground on which the applicant might succeed in respect of the tribunal having done so.

7. Before his Honour, the applicant argued two grounds entitling him to relief.  First, that the tribunal failed to seek independent information substantiating his claims; and secondly, that it had failed to consider his genuine claims to have been persecuted and the genuineness of his fear that he would be persecuted or killed were he to return to India.  His Honour found that neither ground raised an arguable case.

8. I agree.  His Honour set out in his judgment the tribunal’s reason for not being satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason were he to return to India.  The tribunal said there was a lack of evidence to substantiate his claims, and without the opportunity to explore them at a hearing to, among other things, establish or test the truthfulness, it was not satisfied that he was entitled to a protection visa.  There is no arguable error that I am able to discern in the decision of the trial judge.

9. Although the second ground in draft notice of appeal argued that his Honour dismissed the case without considering “the legal and factual errors contained in the decision of the Refugee Review Tribunal,” any such errors were unparticularised and, on the material before me, unsustainable.

10. The last ground in the draft notice of appeal asserts that his Honour made a legal, factual and jurisdictional error in not applying principles laid down in Randhawa v Minister for Immigration (1994) 52 FCR 437. The tribunal said it was unable to be satisfied that the Indian police had refused to protect the applicant from harm or that his life was in danger elsewhere in India. Thus, it found that it was unable to be satisfied that the applicant could not have relocated in India to avoid the claimed persecution. Again, that finding is one which was open to the tribunal on the material before it, scant and unsatisfactory as it found that material to be.

11. The decision of the trial judge was an interlocutory decision:  Re Luck (2003) 203 ALR 1 at 3-4 [6]-[10] per McHugh ACJ, Gummow and Heydon JJ. In order to establish whether a grant of leave to appeal should be given, an applicant must show that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. On the material before me, I am in no doubt that the decision below was correct, nor am I satisfied that there is any substantial injustice that would result from a refusal to grant leave to appeal.

12. Accordingly, I am of opinion that the application fails and should be dismissed.  I am satisfied from the affidavit of Nicola Johnson sworn 8 May 2008 that the Minister has incurred substantial costs in the matter.  I am satisfied that the amount sought for costs to be fixed in the sum of $1,100 by the Minister is a reasonable sum.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        12 June 2008

Applicant:	Appeared in person
Solicitor for the First Respondent:	N Johnson, Sparke Helmore

Date of Hearing:	8 May 2008
Date of Judgment:	8 May 2008