SZLQP v Minister for Immigration and Citizenship

[2008] FCA 880

FEDERAL COURT OF AUSTRALIA

SZLQP v Minister for Immigration & Citizenship [2008] FCA 880

SZLQP v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

NSD202 OF 2008

EMMETT J

29 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD202 OF 2008

BETWEEN: SZLQP
Applicant

AND:

MINISTER FOR IMMIGRATION AND 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 be dismissed. 

2.The applicant pay the first respondent’s costs in the sum of $800.

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	NSD202 OF 2008

BETWEEN: SZLQP
Applicant

AND:

MINISTER FOR IMMIGRATION AND 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 orders of the Federal Magistrates Court made on 4 February 2008, by which that Court summarily dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). 

2. The proceeding was dismissed because the primary judge concluded that there was no arguable case of jurisdictional error on the part of the Tribunal.  Leave to appeal to this Court is required, on the basis that the order of the Federal Magistrates Court is an interlocutory order because it does not finally dispose of the dispute between the applicant and the first respondent, the Minister for Immigration and Citizenship (the Minister): see r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth); cf SZLPX v Minister for Immigration and Citizenship [2008] FCA 881 at [2]).

3. The applicant is a citizen of India.  He arrived in Australia on 30 April 2007.  On 17 May 2007, he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).  On 29 June 2007, a delegate of the Minister decided to refuse to grant a visa.  On 25 July 2007, the applicant applied to the Tribunal for review of the delegate’s decision and, on 12 October 2007, the Tribunal affirmed the decision not to grant a protection visa. 

4. The Tribunal invited the applicant to attend a hearing on 19 September 2007 to give oral evidence and present arguments in support of his claim.  The invitation to appear at the hearing was sent by registered post to the applicant’s address for correspondence.  He did not respond to the invitation and did not appear on the appointed day. 

5. In its reasons, the Tribunal observed that the applicant had claimed that he feared persecution because of his race and political opinion.  He claimed that he was beaten because of his race and political views and that the police would not protect him.  He claimed that he was a member of the Gujjar race and that he had been elected as president of Yuva Sangthan at a college where he was studying.  He claimed that after he won that election another group threatened to kill him.  The Tribunal was not satisfied on the evidence before it that the applicant was in danger in India.  The Tribunal had only the information contained in written material.  The Tribunal characterized that as unsubstantiated assertions containing insufficient particulars as to the detail of claims to enable the Tribunal to establish relevant facts.

6. The applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  On 14 January 2008, he filed an amended application which contained nine grounds of review which bear a striking resemblance to the grounds in other cases.  The grounds might be summarised as follows:

   1.The Tribunal failed to accord procedural fairness insofar as the Tribunal relied on independent evidence as to the prevalence of claims about political persecution and the Tribunal did not mention this adverse information to the applicant.. 

   2.The applicant gave adequate evidence to the Department that he had been physically assaulted and threatened because of his race.

   3.The Tribunal did not take into account relevant considerations or integers because he was denied the opportunity of giving an oral statement. 

   4.The Tribunal did not consider that the applicant had been under immense and intimidating pressure and therefore failed to carry out its review function and exercise its jurisdiction. 

   5.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm if he were asked to relocate in India. 

   6.The Tribunal applied the wrong test by leaving out individual elements of the applicant’s claim, placing too high an onus of proof on the applicant and failing to give the applicant the benefit of the doubt.

   7.The Tribunal did not use the country information “as specific”, was “preoccupied” and did not give the applicant a chance to present his claim.

   8.The Tribunal acted illogically and failed to weigh properly the effect of claims made by the applicant. 

   9.The Tribunal failed to see that the applicant satisfied the four key elements of the definition of refugee in the Convention, because it failed to analyse properly the future harm that the applicant might face if he has to go back to India. 

7. The Federal Magistrates Court considered each of those grounds. Insofar as the first ground asserts a breach of s 424A of the Act, it is clear that the Tribunal did not rely on independent country information. Even if it had, it would not have required disclosure by reason of s 424A. See s 424A(3)(a).

8. The primary judge considered that grounds 2, 4 and 9 were attacks on the merits of the Tribunal’s decision and were, therefore, not subject to review.  His Honour considered there was no substance in the asserted breach of s 91R made in ground 5, and that ground 8 does not rise above a challenge to the merits of the applicant’s claim.  Finally, ground 3 was, in his Honour’s view, without substance since it is clear that the Tribunal considered all the applicant’s claims that were before it when it made its decision. If the applicant had anything further to say to the Tribunal, the Tribunal was not made aware of his desire to do so. 

9. The primary judge also considered there was no substance in ground 6 since the Tribunal looked at all the material before it as a whole.  His Honour could see no arguable case of jurisdictional error in relation to failure to exercise jurisdiction or a denial of procedural fairness.  The reference to country information in ground 7 is obscure and barely intelligible.  His Honour concluded that there was no arguable case of jurisdictional error disclosed by the grounds of the amended application.

10. In his draft notice of appeal in support of the application for leave, the applicant seeks to rely on three grounds of appeal as follows:

    1.The Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth)

    2.The Federal Magistrates Court dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal. 

    3.The Federal Magistrates Court made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

    No particulars are provided of those grounds, which are virtually incomprehensible. 

11. The applicant appeared in person at the hearing of the application for leave.  He was assisted by an interpreter.  When invited to make submissions, he simply said that he was not satisfied with the decision of the Federal Magistrates Court. 

12. Insofar as leave is necessary, leave should be refused on the basis that there was no error disclosed on the part of the Federal Magistrates Court.  Even if leave were not required, the appeal should be dismissed as having no possible prospect of success.

13. The Minister asks for his costs of the proceeding.  On the basis that the taxed costs are likely to be 70% of the actual professional costs incurred, the taxed costs would be in excess of $800.  The Minister asks for an order for costs in the sum of $800.  That appears to me to be appropriate.

I certify that the preceding thirteen (13) 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 Crittendon (solicitor)
Solicitor for the First Respondent:	Clayton Utz

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