SZLRF v Minister for Immigration and Citizenship

[2008] FCA 1682

FEDERAL COURT OF AUSTRALIA

SZLRF v Minister for Immigration and Citizenship [2008] FCA 1682

Migration Act 1958 (Cth)

Attorney-General of NSW v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v Epeabaka (2001) 206 CLR 128

SZLRF, SZLRG and SZLRH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1163 OF 2008

REEVES J
14 NOVEMBER 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1163 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLRF
First Appellant

SZLRG
Second Appellant

SZLRH
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	14 NOVEMBER 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1163 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLRF
First Appellant

SZLRG
Second Appellant

SZLRH
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	14 NOVEMBER 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against the judgment of Federal Magistrate Smith delivered on 4 July 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was handed down on 30 October 2007 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.  The first appellant submits that both the Tribunal and the Federal Magistrate failed to properly assess his evidence of his fear of harm in India and they also failed to properly consider the relocation issue.

   FACTUAL SUMMARY

2. The appellants are citizens of India who arrived in Australia on 10 July 2007. On 25 July 2007, the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused those applications on 17 August 2007. On 29 August 2007, the appellants applied to the Tribunal for a review of that decision. The appellants are a family comprising the husband, his wife and their daughter. Only the husband directly claimed to be a refugee. The claims of the wife and daughter are based on the husband’s claim.

3. In the appellant husband’s application, he recounted difficulties he encountered from about January 2006 when he and a friend, Mr Manjit Singh, took a Mr Karim Ahmed Khan, who owed Mr Singh debts, in his car to a building in Mumbai in order to pressure him to pay those debts. The appellant husband claimed that, unknown to him, while he was parking his car, Mr Singh had locked Mr Khan in a room in a nearby temple for a day or two, releasing him only after Mr Singh and the appellant husband were later arrested by the police on the complaint of Ms Khan that they had kidnapped her husband. The appellant husband claimed that he and Mr Singh were charged with extortion and kidnapping by a local police inspector. He claimed that Ms Khan had political connections in the Congress Party, and also could bring ‘religious pressure’ to bear on the inspector because Mr Khan was a Muslim and the appellant husband and Mr Singh were both Sikhs.

4. The appellant husband claimed that he and Mr Singh were released on bail after eight days. However, Ms Khan made further complaints to the police inspector, and, as a result, he was then obliged to pay large bribes to the police inspector to avoid further trouble. The appellant husband claimed “again after two months Ms Khan put a forgery case on me and Mr Singh” and the police inspector started pressuring him for more money to avoid that charge being pursued. He claimed that he was having difficulties raising more money and was advised to “leave my place and shut down my business from that place and move to some other place or to leave this country”.

5. The appellant husband attended a hearing before the Tribunal on 9 October 2007.

   THE TRIBUNAL’S DECISION

6. The Tribunal found that the appellant husband was not a credible witness. Specifically the Tribunal noted that the appellant husband’s oral evidence and his application for review to the Tribunal contained considerably more claims than his initial protection visa application, and the appellant husband had failed to provide a satisfactory explanation for this expansion of his claims

7. The Tribunal rejected the appellant husband’s claims of threats and persecution by Muslims, the Congress Party and others based on the fact he chose to remain at his home in Mumbai after 2006, where his alleged persecutors could easily locate him. Further, the Tribunal was not satisfied false charges had been brought against the appellant husband in India, or that he had received threatening telephone calls in Australia.

8. The Tribunal found that any financial hardship suffered by the appellant husband did not amount to serious harm within the meaning of s 91R(1) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal concluded that there was no real chance that the appellant husband would face persecution for any Convention reason if he were to return to India and affirmed the decision of the delegate.

   THE FEDERAL MAGISTRATE’S DECISION

9. The appellant husband filed an amended application for judicial review of the Tribunal’s decision in the Federal Magistrate’s Court on 12 February 2008. He relied upon four grounds of review. In relation to ground one, the Federal Magistrate held that the credibility of the appellant husband was a matter for the Tribunal to determine on the evidence before it and that its conclusion in that respect was not open to judicial review by the Federal Magistrates Court (see [19] of his reasons). The Federal Magistrate also rejected ground three which alleged an incorrect application of the ‘serious harm’ test under s 91R(1) of the Act (see [27] of his reasons).

10. The second ground alleged the appellant husband was denied a reasonable opportunity to provide corroborating documentation from India. In rejecting this ground, the Federal Magistrate held that the Tribunal was not under an obligation to request the appellant husband to provide further documents where it had already found the appellant husband not to be a credible witness and the appellant husband had been given ‘ample and reasonable opportunity’ to produce any documents he wished (see [20] to [26] of his reasons).

11. As to the alleged breach of s 424A of the Act raised in the fourth ground, his Honour could not detect any information that was required to be put to the appellant husband under s 424A(1) of the Act (see [28] of his reasons). Accordingly, the Federal Magistrate dismissed the appellant husband’s application for judicial review

    THE PRESENT APPEAL

12. On 24 July 2008, the appellant husband filed a notice of appeal in this Court. In it he set out two grounds of appeal. They can be summarised as follows:

    Ground One – The Federal Magistrate erred in not finding that the Tribunal had            wrongly found that he did not have a fear of harm because he had remained at his home.

    Ground Two - The Federal Magistrate erred in not finding that the Tribunal had            erred in dealing with the relocation issue.

13. At the hearing of the appeal before me on 6 November 2008, the appellant husband appeared in person, unrepresented, but assisted by an interpreter. Mr Cleary appeared for the first respondent.

    CONSIDERATION

14. Ground one seeks to challenge the Tribunal’s assessment of the appellant husband's evidence and the conclusions it drew that his claims that he had received threats from, and had been persecuted by, Muslims, the Congress Party and others were not credible because, among other things, he had continued to live at his home in Mumbai for a considerable period after the alleged threats and persecution began.

15. On its face, this ground clearly constitutes an invitation to this Court to engage in a review of the Tribunal’s fact finding role, which is not its function on an appeal of this kind: see Attorney-General of  NSW v Quin (1990) 170 CLR 1 at 34 – 36, Minister for Immigration and Ethnic Affairs  v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 – 292, Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [132] – [134] and Minister for Immigration & Multicultural & Indigenous Affairs v Epeabaka (2001) 206 CLR 128 at [64].

16. The Federal Magistrate rejected a similar ground before him for the same reason: see [9] above. In my view his Honour was quite correct in doing so. It follows that this ground has no merits and must be rejected.

17. Ground two was not raised before the Federal Magistrate. The appellant husband therefore requires leave to raise it for the first time on this appeal. In my view this ground is misconceived. As noted above, the Tribunal rejected the appellant husband’s claims to have a well founded fear of persecution because it found his claims were not credible. The Tribunal did not therefore need to, and did not in fact proceed to; consider whether it was reasonable and practical for the appellant husband to relocate in India to avoid persecution. The issue of relocation therefore did not arise. The Tribunal’s reference to the fact the appellant husband continued to live at his home in Mumbai for a considerable period after the alleged threats and persecution began, went to its assessment of the credibility of his claims, not to any relocation issue. This ground therefore has no merits and I refuse leave to the appellant husband to raise it for the first time on this appeal.

    CONCLUSION

18. For these reasons this appeal must be dismissed. I will hear the parties on the question of costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        14 November 2008

First Appellant:	In person
Solicitor for the First Respondent:	Clayton Utz
Counsel for the First Respondent:	Mr M Cleary

Date of Hearing:	6 November 2008
Date of Judgment:	14 November 2008