SZLPX v Minister for Immigration and Citizenship

[2008] FCA 881

FEDERAL COURT OF AUSTRALIA

SZLPX v Minister for Immigration and Citizenship [2008] FCA 881

SZLPX v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD276 OF 2008

EMMETT J

29 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD276 OF 2008

BETWEEN: SZLPX
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	29 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs in the sum of $770.

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	NSD276 OF 2008

BETWEEN: SZLPX
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	29 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from an order of the Federal Magistrates Court dismissing summarily an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). 

2. The orders of the Federal Magistrates Court have been characterised as interlocutory because the Federal Magistrate made the order pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Those Rules authorise the summary dismissal of a proceeding that does not disclose an arguable case for judicial review.  Those Rules further provide that such a dismissal is interlocutory.  However, the Rules cannot themselves determine that question.  Whether or not the orders finally dispose of the dispute between the applicant and the first respondent, the Minister for Immigration and Citizenship (the Minister), may be a question for further argument.  However, as no such argument has been advanced today, I propose to deal with the application for leave to appeal on the basis that leave is necessary. 

3. The applicant is a citizen of India.  He arrived in Australia on 11 May 2007.  On 14 May 2007, he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).  On 5 June 2007, a delegate of the Minister decided to refuse to grant a visa.  The applicant applied for review of that decision by the Tribunal and, on 25 September 2007, the Tribunal affirmed the decision not to grant the applicant a protection visa.  The applicant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  An amended application was filed on 29 January 2008.  On 12 February 2008, after hearing from the applicant, the Federal Magistrates Court ordered that the application be dismissed on the ground that it did not raise an arguable case for the relief claimed. 

4. The applicant applied to this Court for leave to appeal on 29 February 2008.  The draft notice of appeal, which the applicant proposes to file should his application for leave be successful, is not particularly informative as to the grounds of error on the part of the Federal Magistrates Court.  However, before considering these grounds it is useful to summarise the proceedings before the Tribunal.

5. The applicant made claims to the Tribunal that he feared persecution in India because of his teaching and his Christianity.  He said that he provided English language lessons in his village Catholic Church to young children, some of whom were children of non-Christian families.  Amongst other claims, he asserted that, on one occasion, he was abducted by anonymous Muslims and after being tied to a tree overnight, was told to leave India or face death.  He claimed that he therefore fled India and fears for his life if he returns. 

6. The Tribunal was satisfied that the applicant is a Christian and a churchgoer, and that he lived in Kerala before his departure from India as he claimed.  However, after considering all of the evidence cumulatively, the Tribunal rejected the applicant’s claims that he suffered harm in India, that he fled India as a result and that he has a fear of persecution in India.  The Tribunal considered that the applicant’s claims had been contrived for the purposes of his application for refugee status.  The Tribunal set out in considerable detail its findings in relation to the claims made by the applicant and the matters that the Tribunal considered demonstrated inconsistency between the oral evidence of the applicant and a written statement that he provided to the Tribunal.  The inconsistencies between the statement and the evidence at the hearing led the Tribunal to conclude that the events described by the applicant did not take place. 

7. The Tribunal also had regard to certain visas contained in the applicant’s passport, which he produced to the Tribunal at the hearing.  The applicant had been granted a Subclass 420 visa in November 2006, which permitted a stay in Australia until late December 2006.  He was also granted a subclass 420 visa in April 2007, which permitted a stay in Australia until mid-May 2007.  The Tribunal considered the fact that the applicant failed to use the first visa, or another visa issued by Singapore, which he was also granted, indicated that he did not depart India with any urgency.  The Tribunal concluded that the applicant chose not to use the earlier visas and that he did not flee India with urgency as he claimed.  The applicant’s unhurried departure from India led the Tribunal to conclude that he did not have a fear of persecution for any reason at all. 

8. The Tribunal could not discern any circumstances that might give rise to a real chance of prospective harm, let alone persecution, if the applicant returned to India.  The Tribunal was satisfied that he would be able to practice his religion and to attend a church of his choosing in India.  For that reason, the Tribunal concluded that Australia does not have protection obligations to the applicant. 

9. The amended application filed in the Federal Magistrates Court is not easy to comprehend.  It specifies six grounds which might be summarised as follows:

   1.The Tribunal relied on independent evidence as to the prevalence of claims about political persecution but failed to comply with s 424 of the Migration Act. Reference is then made to s 424A. The complaint appears to be that the Tribunal relied on adverse information that was not provided to the applicant in writing. As the primary judge observed, the complaint appears to relate to general country information concerning India, which would fall within s 424A(3)(a). In any event, as his Honour said, the Tribunal did not rely on general country information when affirming the delegate’s decision.

   2.The applicant gave adequate evidence to the Tribunal but the Tribunal failed to consider the applicant’s claims.  The primary judge found that that assertion is simply totally without substance.

   3.The Tribunal failed to ask whether the Indian authorities provided a standard of protection comparable with international standards.  The primary judge observed that that contention has no relevance to the reasoning of the Tribunal.  The Tribunal concluded that the applicant had no genuine fear of persecution for any reason.

   4.The Tribunal did not take into account certain relevant considerations because the applicant spent three hours being questioned without a break and felt stressed and intimidated.  The primary judge observed that the Tribunal identified and addressed all of the applicant’s evidence but for the detailed reasons given disbelieved his claims. 

   5.The Tribunal did not consider the applicant, who had been under immense and intimidating pressure from Muslim toughs and goons and did not consider the applicant’s claims that his Christian activity resulted in threats by Muslim and Hindu fundamentalists.  The primary judge observed that the Tribunal clearly identified and addressed the applicant’s evidence but rejected it because he was not believed. 

   6.The Tribunal applied the wrong test insofar as it left out individual elements of the applicant’s claim and placed too high an onus of proof on the applicant and failed to give him the benefit of the doubt.  The primary judge considered that that ground had no substance; it appeared to have been copied from a precedent that had no application to the present case. 

10. In the draft notice of appeal, filed in conjunction with the application for leave to appeal, no attempt is made to point to any error on the part of the Federal Magistrates Court.  The applicant simply asserts jurisdictional error, breaches of procedural fairness and breaches of natural justice.  Particulars of the grounds attached to the draft notice of appeal generally repeat in different language the types of complaints that are made in the amended application to the Federal Magistrates Court. 

11. The particulars assert that the Tribunal breached s 424A as adverse information found at the hearing was not put to the applicant in writing before the decision was made. It asserts that the Tribunal did not address sufficiently the applicant’s claims of Christianity. Next, the particulars assert that the Tribunal’s reasoning and findings were made without giving the applicant the opportunity to comment on adverse information. Finally, the particulars assert that the Tribunal did not clearly identify and sufficiently assess the applicant’s fear in relation to his Christianity in its findings. He asserts that the Tribunal ought to have considered country information on India relating to Christians suffering hardships in India.

12. On the assumption that the particulars should be read as a complaint that the Federal Magistrates Court erred in failing to have regard to those matters when considering the summary dismissal, they still do not disclose any error on the part of the Federal Magistrates Court.  There was clearly no arguable case disclosed in the amended application.  The applicant was given the opportunity to make submissions to the Federal Magistrates Court but apparently did not make any meaningful submission in support of his claim for relief. 

13. The written submissions filed to the Federal Court simply repeat the particulars attached to the draft notice of appeal.  When invited to make submissions in support of his application for leave to appeal, the applicant complained that he did not get a chance to say what he wanted to say before the Tribunal because he had stage fright and was confused.  There is no material to support that assertion.  That of itself, in any event, would not constitute a ground for concluding that there was jurisdictional error on the part of the Tribunal.  The applicant also asserted orally that the Tribunal did not understand the problems arising from his clash with Muslims. That appears to be no more than a complaint that the Tribunal did not accept his evidence which is clearly not a basis for judicial review.

14. I can see no possible error in the Federal Magistrates Court’s ordering the summary dismissal of the proceeding on the basis that no arguable case was disclosed.  It follows that leave to appeal should be refused.  Alternatively, if leave is not required, the appeal should be dismissed as disclosing no possible basis for success. 

15. The Minister asks for his costs of the proceeding in the Federal Court.  I am satisfied that the costs that would be allowed to the Minister would be marginally in excess of $770, which represents about 70% of the actual professional costs incurred.  In the circumstances, it is appropriate to order that the applicant pay the Minister’s costs in the sum of $770.

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

Associate:

Dated:        17 June 2008

The Applicant appeared in person.
Counsel for the First Respondent:	Ms A Crittenden (solicitor)
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	29 May 2008
Date of Judgment:	29 May 2008