SZLSK v Minister for Immigration and Citizenship

[2008] FCA 797

FEDERAL COURT OF AUSTRALIA

SZLSK v Minister for Immigration & Citizenship [2008] FCA 797

SZLSK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 431 OF 2008

JESSUP J
19 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 431 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLSK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	19 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent fixed in the sum of $1,700.

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 431 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLSK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	19 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court given on 11 March 2008 dismissing an application by the appellant for writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 October 2007 and handed down on 8 November 2007.  In that decision the Tribunal affirmed a decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) Visa under the provisions of the Migration Act 1958 (Cth) (“the Act”).

2. Before the Tribunal, the appellant claimed to fear persecution in India from his creditors.  The appellant claimed that he had incurred substantial losses trading in shares, and that his own debtors had been unable to pay him.  The appellant asserted that his family had been harassed and threatened by debt recovery agents.  The Tribunal accepted the claims of the appellant, but found that any persecution directed towards him was not of a kind with which the Refugees Convention is concerned.

3. In his application in the Federal Magistrates Court, the appellant contended that the Tribunal’s decision was in breach of s 424A(1) of the Act, that the Tribunal had made an error of law and had denied him procedural fairness, that there had been a denial of natural justice and that the Tribunal had been in error to conclude that his claims were not Convention-related. The Federal Magistrate dealt fully with the grounds upon which the appellant relied. Nothing which the appellant has put to me this afternoon, and nothing which appears from my own reading of her Honour’s reasons, gives me any cause to doubt the correctness of her Honour’s disposition of the issues raised by those grounds. She rejected each of them.

4. In his Notice of Appeal, filed in this Court on 31 March 2008, the appellant has relied upon a number of generally expressed grounds, none of which, if I may say so with respect, effectively joins issue with the disposal of his case by the Federal Magistrate.  In his oral submissions to me this afternoon, the appellant did not refer to those grounds in terms or in substance, and did not seek to make a case of error on the part of the Federal Magistrate by reference to those grounds.  The single submission made by the appellant today was that the Tribunal had been in error not to permit him further time to obtain documents from India which he believed would support his case.  He described those documents to me as a “first information report”, although he did not provide further particulars as to what such a report might contain or by whom it might have been issued.  The context in which the appellant raised the question of his opportunity to obtain further documents from India may be understood by the following passage in the decision of the Tribunal:

   I explained to the applicant again that not every problem which a person had brought them within the definition of a refugee: they had to fear persecution for one of the five Convention reasons.  I put to him that it did not appear that one of the five Convention reasons was the essential and significant reason for the persecution which he feared.  The applicant indicated again that he understood.  I asked him again if he wanted additional time to make comments or to respond to this information.  He said that he could produce some documents which he could get from India.  He said that these documents would confirm what he had said regarding his debts.  I indicated to the applicant that it did not appear that these documents would help him.  The applicant repeated that he feared for his life.  I explained to him that, as we had discussed, this was not enough.  His fear had to be for one of the five specific reasons set out in the Refugees Convention but from what he had said he feared being persecuted by the people to whom he owed money.  The applicant said that he had been trading, buying and selling, but he had not been able to get money for the shares which he had bought so he had not been able to pay these other people. 

5. The basis upon which the Tribunal decided not to give the appellant further time to obtain documents in support of his case was simply that the appellant himself had frankly made it clear that his case related to the fears which he entertained about the unfriendly actions of those to whom he owed money, and that whatever the documents said in that regard could not have advanced his case under the Convention. His problem was not that the Tribunal did not believe him or that an otherwise potentially meritorious case lacked evidence; rather, his problem was that his case had no merit at all under the Refugees Convention, however strong it might have been in an evidentiary sense.

6. The way in which the Tribunal approached the matter was clearly recognised by the Federal Magistrate, as is apparent from par 33 of her Honour’s reasons as follows:

   The Tribunal noted that the Applicant had wished to produce documents from India which would confirm what the Applicant said about his debts.  However, the Tribunal informed the Applicant that such documents would not assist him as they did not assist in identifying any Convention-related reason for the harm he had suffered.  In any event, the Tribunal accepted the Applicant’s evidence regarding his debts.

7. It is clear that the approach taken by the Federal Magistrate on this aspect of the appellant’s case was the correct one in the circumstances.  To the extent that the appellant’s submissions before me today might likewise involve a request that this appeal be adjourned to enable documents of this kind to be produced, which were, I should add, the only kind of documents to which the appellant referred in his submission today, then I would take the same approach as the Tribunal and the Federal Magistrate and rule that the appellant’s case to be held to be a refugee under the Convention could not be advanced by the production of further evidence of this kind.

8. The proceedings under appeal were, as I have said, in the nature of an application for writs of the kind which the High Court and the Federal Magistrates Court have power to issue under s 75(v) of the Constitution and, in the case of the Magistrates Court, s 476 of the Act. It was a necessary part of the appellant’s case before the Federal Magistrate, as her Honour apparently pointed out to him, that he establish that there was either an excess of jurisdiction on the part of the Tribunal or a failure to take up the full extent of the jurisdiction which it had. That was, in my respectful opinion, an accurate appreciation of the question which came before her Honour. Nothing in her reasons or in what has been put to me by the appellant today gives me any cause to doubt the correctness of the way she dealt with it.

9. In those circumstances, I propose to dismiss the appeal. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:
Dated:        29 May 2008

Solicitor for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Ms B Rayment
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	19 May 2008
Date of Judgment:	19 May 2008