SZLRR v Minister for Immigration and Citizenship

[2008] FCA 820

FEDERAL COURT OF AUSTRALIA

SZLRR v Minister for Immigration and Citizenship [2008] FCA 820

SZLRR and SZLRS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 418 OF 2008

COWDROY J
4 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 418 OF 2008

BETWEEN:

SZLRR
First Applicant

SZLRS
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	4 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicants pay the cost of the First Respondent in the amount of $975 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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 418 OF 2008

BETWEEN:

SZLRR
First Applicant

SZLRS
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	4 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By application filed in this Court on 27 March 2008 the applicants seek leave to appeal from the interlocutory decision of Federal Magistrate Smith delivered on 26 February 2008. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 8 November 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the applicants Protection (Class XA) visas (‘the protection visas’).

   BACKGROUND

2. The applicants are husband and wife who are citizens of India. The applicants arrived in Australia on 28 March 2007 using visitor visas. On 14 May 2007 the applicants lodged applications for the protection visas with the Department of Immigration and Citizenship. A delegate of the Minister refused the applications for the protection visas on 25 June 2007. On 20 July 2007 the applicants applied to the Tribunal for a review of those decisions.

3. In the protection visa applications, only the applicant husband, the first applicant, claimed to fear persecution if he returned to India. The applicant wife, the second applicant, applied for a protection visa as a member of the applicant husband’s family unit. For convenience, the applicant husband will be referred to as ‘the applicant’.

4. The applicant claimed before the Tribunal that when he was living in the village of Mansa in India he stood as an independent for the Municipal Corporation in the local elections. He claimed that he was opposed by the Bharatiya Janata Party (‘the BJP’) and the Congress Party. He claimed that the BJP and the Congress Party ‘did something’ so that his form was rejected.

5. Before the Tribunal the applicant claimed that people in Mansa harassed him and asked him for money. He claimed that he complained to the police but they asked for a bribe. He also claimed that ‘the bad people’ who had asked him for money learnt of his complaint to the police and consequently beat him and threatened to kill him. The applicant claimed that his assailants had been sent by the BJP and the Congress Party.

   THE TRIBUNAL DECISION

6. The Tribunal considered that the applicant’s claims were based on ‘convention grounds of political opinion’. The Tribunal accepted that the applicant had tried to stand as an independent for the Municipal Corporation in his village and that he may have motivated the local Congress Party and the BJP to intimidate him. The Tribunal considered that such intimidations amounted to serious harm and accepted that the harm suffered by the applicant may have been for reasons of his political opinion. The Tribunal was prepared to accept that he had a well-founded fear of persecution from locals for his political opinion if he returned to Mansa.

7. The Tribunal found on the evidence that the applicant’s activities were highly localised and confined to his village. The Tribunal was satisfied that it was not unreasonable for the applicant to relocate to a different part of India where he would not be at risk of persecution. For this reason it affirmed the decisions of the delegate to refuse to grant the protection visas.

   PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

8. By application filed in the Federal Magistrates Court of Australia on 27 November 2007 the applicant sought judicial review of the Tribunal’s decision. The application raised three grounds of review:

   1.   The RRT denied proper application of law to the applicant.

   2.   The RRT denied natural justice to the applicant.

   3.   The RRT did not follow due procedure.

9. On 27 November 2007 the applicant filed an affidavit sworn on 27 November 2007 which restated the grounds of review in his application.

10. In considering the first ground of review, Federal Magistrate Smith noted that the Tribunal’s reasons for finding that the applicant could relocate within India were brief. However, Smith FM found that the Tribunal had not erred in its application of the principles in SZATV v Minister for Immigration and Citizenship and Another (2007) 237 ALR 634 and was unable to identify any arguable error in the Tribunal’s finding.

11. The Federal Magistrate considered the second and third grounds of review and was unable to identify any arguable failure by the Tribunal to follow the procedures required under the Migration Act 1958 (Cth) (‘the Act’).

12. On 26 February 2008 Smith FM dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (Cth) (‘the FMC Rules’) (see SZLRR & Anor v Minister for Immigration & Anor [2008] FMCA 328).

13. On 12 March 2008 the applicant filed a notice of motion in the Federal Magistrates Court which sought to vacate the orders of 26 February 2008 and reinstate the application for review of the Tribunal’s decision. On the same day the applicant filed an affidavit sworn on 12 March 2008 in which the applicant claimed that although the Federal Magistrate had referred the applicant to the New South Wales Tribunal Legal Advice Scheme panel no such legal assistance had been provided. The applicant also claimed that ‘due procedure’ had not been followed because he had not been represented during the hearing.

14. Contrary to the applicant’s claim, the court file recorded that a barrister had been appointed to assist the applicant and that advice had been provided by such barrister on 7 February 2008. At the hearing before the Federal Magistrate on 26 March 2008 the applicant claimed that he disagreed with the barrister’s advice and wished to rely upon an amended application. The draft amended application was tendered as an exhibit in Court and was considered by Smith FM.

15. The amended application raised several grounds of review, namely: the Tribunal failed to consider the political opinion of the applicant; the Tribunal failed to address the applicant’s claim based on the applicant’s membership of a particular social group of ‘businessman [sic] persecuted by criminal groups’; the Tribunal made findings that were unsupported by evidence; and the Tribunal failed to apply principles concerning internal relocation according to law.

16. In his judgment delivered on 26 March 2008 Smith FM, having observed that no appeal had been made from his decision delivered on 26 February 2008, refused the application for reinstatement after considering the grounds raised by the applicant. His Honour found that the Tribunal had considered the applicant’s political opinion; that the applicant had not claimed before the Tribunal that he had been a member of a particular social group of ‘businessman [sic] persecuted by criminal groups’; that the applicant’s claim that the Tribunal made findings in the absence of evidence had no arguable substance; and that the Tribunal had correctly applied the principles in relation to internal relocation.

17. Smith FM was not persuaded that the applicant had presented proper grounds for vacating the orders made on 26 February 2008. His Honour accordingly rejected the applicant’s notice of motion.

    APPLICATION FOR LEAVE TO APPEAL TO THIS COURT

18. The decision of Federal Magistrate Smith delivered on 26 February 2008 dismissed the applicant’s application pursuant to r 44.12(1)(a) of the FMC Rules. Such decision is interlocutory (see r 44.12(2) of the FMC Rules) and accordingly leave is required to appeal from such decision to this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

19. Under O 52 r 5(2) of the Federal Court Rules (Cth) (‘the Rules’) the applicant should have filed his application for leave to appeal within 21 days of 26 February 2008, namely by 18 March 2008. His application for leave to appeal was nine days late, having been filed on 27 March 2008. Accordingly, the applicant requires leave to appeal from the interlocutory decision of Smith FM under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as well as an extension of time to file such application for leave pursuant to O 3 r 3 of the Rules.

20. On 27 March 2008 the applicant filed in this Court an application seeking leave to appeal from the interlocutory decision of Smith FM delivered on 26 February 2008. Such application also seeks an order under O 52 r 5(3) of the Rules that compliance with O 52 r 5(2) of the Rules be dispensed with.

21. On 27 March 2008 the applicant filed an affidavit sworn on 26 March 2008 in support of the application for leave to appeal. Such affidavit alleges that on 26 March 2008 the Federal Magistrate erred in deciding that the applicant’s case was not arguable; the Federal Magistrate ‘failed to consider that the applicant was not in receipt of the advice from the panel advisor’; the Federal Magistrate ‘failed to find any jurisdictional error’ in the Tribunal decision; and the Federal Magistrate failed to consider ‘some grounds’ raised before the Federal Magistrates Court on 26 March 2008.

22. The applicant’s affidavit also attaches a draft notice of appeal which repeats the grounds raised in the amended application considered by Smith FM in his judgment dated 26 March 2008 and additionally claims that the Federal Magistrate ‘erred in law as he did not go into the merit of the case’.

23. The applicant’s application was heard in this Court on 30 May 2008. At the hearing leave was granted to the applicant to file in Court an outline of submissions. Such submissions identify alleged errors by the Tribunal, claiming that it was not open to the Tribunal to hold that the applicant would not suffer for his political opinion in another part of India if he continued his political activities; the Tribunal did not consult any independent country information; there was no evidence before the Tribunal to support its finding; the Tribunal denied the applicant natural justice; the Tribunal did not put its adverse finding in writing to the applicant so as to enable him to assess the Tribunal’s finding and to make a written submission; the Tribunal did not assess that ‘not paying bribe to the police’ was ‘a political opinion and that as a businessman in India there were possibilities that the applicant would suffer in the hands of police if he did not pay bribes in any part of India’; and the Tribunal did not assess whether the internal relocation would allow the applicant to conduct his business activities and conduct his political activities.

24. The applicant’s submissions also claim that the Federal Magistrate failed to identify the above errors of the Tribunal and that the applicant was self-represented and ‘could not provide an amended application in time before the court’.

    FINDINGS

25. The Court has considered the applicant’s affidavit in support of his application and finds that the applicant has not provided any explanation for his delay in filing the application for leave to appeal. However, at the hearing before this Court on 30 May 2008 the applicant claimed that he had regarded the decision of Smith FM as being final on 26 March 2008.

26. The Court notes that on the date when time expired for the filing of the application for leave to appeal, namely 18 March 2008, the applicant’s notice of motion seeking to vacate the orders of Smith FM made on 26 February 2008 was still unheard in the Federal Magistrates Court. The decision of the Federal Magistrate dismissing such notice of motion was delivered on 26 March 2008. The Court is prepared to accept that the time in which to appeal from the judgment of Smith FM delivered on 26 February 2008 may have been unclear to the applicant.

27. The Court also notes the relatively short delay in filing the application for leave to appeal. In these circumstances, to ensure that no injustice is done to the applicant, the Court will extend the time for the applicant to file his application for leave to appeal pursuant to O 3 r 3 of the Rules.

28. In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the Federal Magistrate’s decision is attended with sufficient doubt to warrant it being reconsidered by this Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong: see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184; Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441.

29. In considering the applicant’s three grounds of review, the Federal Magistrate at [8]-[9] said:

    The contention that the Tribunal “denied proper application of law” is not particularised. The Tribunal’s reasons for finding that the applicants could relocate geographically to India to avoid persecution are brief, but I am unable to identify any arguable error. The Tribunal appears to apply principles approved in the High Court recently in SZATV v Minister for Immigration & Citizenship [2007] HCA 40, (2007) 237 ALR 634. It has taken into account the practicability of relocation. I can see no arguable error arising under Ground 1.

    Grounds 2 and 3 lack any particulars in relation to procedural unfairness or other procedural error, and I am unable to identify any arguable failure by the Tribunal to follow procedures required under the Migration Act 1958 (Cth). The applicant husband was given a full opportunity to present his claims to the Tribunal at a hearing, and according to the Tribunal’s description he was alerted to the issue of relocation by the Tribunal. He was given the opportunity required by law to present all his evidence to the Tribunal.

30. The Court has considered the applicant’s draft notice of appeal, affidavit, and written submissions. The Court is not satisfied that there is any basis to hold that the decision of Smith FM is erroneous. It follows that his Honour’s decision is not attended with sufficient doubt to warrant its reconsideration by this Court.

31. Insofar as the applicant claims that the Federal Magistrate erred in his decision delivered on 26 March 2008, the Court considers that such claims are not relevant to the current application as the applicant has not appealed from the decision delivered on 26 March 2008. The Court however notes that the applicant’s claims relating to such decision are without merit.

32. The Court is also satisfied that no substantial injustice would result if leave were refused supposing the decision to be wrong.

33. It follows that the application for leave to appeal must be dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       4 June 2008

Counsel for the Applicants:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms Crittenden

Date of Hearing:	30 May 2008
Date of Judgment:	4 June 2008