SZLNR v Minister for Immigration and Citizenship

[2008] FCA 891

FEDERAL COURT OF AUSTRALIA

SZLNR v Minister for Immigration and Citizenship
[2008] FCA 891

SZLNR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 139 OF 2008

RARES J

8 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 139 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLNR
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 $1,400.

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 139 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLNR
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 an application for constitutional writ relief as not raising an arguable case:  SZLNR v Minister for Immigration [2008] FMCA 102.

2. The applicant before me appeared before his Honour with his wife as a co-applicant.  However, she has not applied for leave to appeal to this court.  His Honour considered the three grounds put forward as to why the Refugee Review Tribunal’s decision to refuse the applicant and his wife a protection visa was said to be infected by jurisdictional error.

3. Essentially, the tribunal had found that it did not accept that the applicant was a credible witness and was not satisfied of any of the claims that he had made that he had a well-founded fear of persecution for a Convention reason.  Rather, the tribunal accepted the applicant’s evidence to it, both in a statement accompanying his original application and at the hearing before the tribunal, that he had debts in India and wanted to remain in Australia to earn money to repay those debts.

4. His Honour noted that the hearing before him had been listed after the applicants had been given an opportunity to amend their grounds and to file further evidence after receiving a bundle of relevant documents and a referral for free legal advice.  He noted that the applicants had not filed any documents other than their original application.

5. Before his Honour, the applicants had argued that the decision of the tribunal should be set aside because the tribunal had:

   ·failed to comply with s 424A of the Migration Act 1958 (Cth);

   ·made an error of law and failed to accord them procedural fairness, thus committing a jurisdictional error;

   ·denied the applicants natural justice because it was wrong in concluding that their claims were not Convention related.

6. His Honour found that no particular of any information evidencing a failure to comply with section 424A(1) was identified and he was unable to see any argument that the section had not been complied with in accordance with its terms. I see no error in that reasoning.

7. Secondly, he said that the second and third grounds were unparticularised and that he was unable to identify any unfairness in the tribunal’s procedures which were arguable.  I agree with those observations.  His Honour then said that the present applicant attended before him but presented no argument to show him an arguable case that the tribunal’s decision was affected by any jurisdictional error.  I have had the same experience.

8. The applicant before me said that he had been advised to say nothing in court.  I told him that that advice was wrong and that he should tell me what his case was, but he declined to do so.  In this affidavit in support of his application for leave to appeal he asserted that he did not get a proper opportunity to argue his case and that there had been a failure of justice.  As I have said for whatever reason, the applicant has decided not to argue his case before me, although he has filed some written submissions which have obviously been drafted by a person with legal experience but without any reference to the actual facts of his case, or the decision of the tribunal concerning it.

9. In his affidavit in support of the application for leave to appeal he asserted that he had a strong arguable case, which the trial judge failed to consider and that “I believe that the court will understand this and let me argue the case in full.”  As I have said, I gave the applicant every opportunity to put forward his argument, but apart from relying on his written submission, he refused to do so.

10. His affidavit in this Court also asserted that although the trial judge had referred him and his wife to a lawyer in the Refugee Review Tribunal legal advice scheme panel, they did not receive legal assistance.  However, as the Minister noted, there had been no issue before his Honour in the court below that the applicant and his wife had not received assistance from the legal advice scheme.

11. In the written submission filed by the applicant on 4 April 2008, it is noted that the tribunal did not believe the applicant’s explanation.  That, undoubtedly, was correct.  However, credibility-based findings such as the ones that the tribunal made in the applicant’s case are at the very heart of its statutory function.  I have read the decision of the tribunal and am unable to identify, by reference to the applicant’s written submission or my own understanding of the delegate’s and the tribunal’s decisions, any arguable basis on which it could be said that the tribunal’s rejection of the claim to a protection visa was affected by a jurisdictional error.

12. The tribunal found that the applicant effectively abandoned the claims made in the statement accompanying his original protection visa application in the course of the hearing before it and, as I have said, it found that the applicant was not a credible witness.  It did not accept that he was telling the truth about the problems he claimed to have had in India and it did not accept that he was threatened by people from any political party or caste as he claimed.  It did not accept his claims to have been attacked and injured and, at the end of the day, came to the view that it was not satisfied on the evidence before it that the applicant had a well-founded fear of being persecuted for a Convention reasons if he returned to India.

13. The applicant’s written submissions appear to address arguments which go to the merits of his claim.  They do not reveal any argument that I am able to understand relating any jurisdictional error in the actual decision of the tribunal not to believe him and thus not to be satisfied that he had established his claim to a protection visa.

14. In my opinion, the applicant has not established any basis upon which I could grant leave to appeal in accordance with the principles:   SZLGA v Minister [2008] FCA 884.

15. I am of the opinion that the application fails and should be dismissed.  I am satisfied that the Minister’s application for costs to be fixed in the sum of $1,400 is a reasonable one.

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

Associate:

Dated:        12 June 2008

The First 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