SZLSX v Minister for Immigration and Citizenship

[2008] FCA 1357

FEDERAL COURT OF AUSTRALIA

SZLSX v Minister for Immigration and Citizenship [2008] FCA 1357

SZLSX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 856 OF 2008

NORTH J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 856 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLSX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	19 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.That the appeal is dismissed.

2.That the appellant pay the first respondent’s costs of the appeal.

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 856 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLSX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	19 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 29 May 2008: SZLSX v Minister for Immigration & Anor [2008] FMCA 707. That judgment dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which was signed on 13 November 2007. The Tribunal affirmed the refusal of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister) to grant the appellant a protection visa.

2. The appellant is a national of India and he is a Muslim by religion.  The claim which he made in his visa application was that he would be persecuted by extortionists and that the state refused to protect him because of his political opinion.  The application went on to state that the appellant would make a detailed submission at a later date.  In respect of the particulars sought in the application, he again indicated that they would be provided later. 

3. At the hearing before the Tribunal the claimed fear was explained on an entirely different basis.  The appellant said that he feared that his business would be harmed by competitors because he was a Muslim and they were Hindus.

4. From [7] – [18] of the decision of the Federal Magistrate, the events of the hearing before the Tribunal were set out and it is unnecessary for the Court to repeat them in greater detail. 

5. The Tribunal rejected the appellant’s application essentially for the reason that the claims made at the hearing differed markedly from the briefly-stated claim in the visa application.  The findings and reasons of the Tribunal state the following:

   Although the applicant’s claims as set out in his protection visa application were brief, they differ significantly from the claims he made at hearing with the Tribunal.  In his protection visa application the applicant claimed that he fears persecution in the ‘hands of extortionists and the state authority refused to protect them for his political opinion’.  However, at hearing with the Tribunal, the applicant claimed that he fears persecution from a business competitor because of his religion.  He claimed that after he undercut this person, he tried to burn down his business and as a result the applicant claimed he moved out of his village and set up business in Mumbai but the person, who is a mafia type of person, continued to harass him, sending friends, family and acquaintances to his business in Mumbai.  He claimed that this person also sent the police who asked for bribes and this person also wanted the applicant to sell him his business for less than it is worth.

   The Tribunal put to the applicant that he had not mentioned the claims he was making at hearing in his protection visa application and that his failure to do so may lead the Tribunal to doubt his evidence and to doubt his claims.  When asked why he failed to mention these details in his protection visa application, the applicant said that he did not know he could just write his claims without the proof and he was gathering the file with the proof.  The Tribunal indicated that the questions in the application were about why he left the country, what he feared would happen on his return, who he thought would harm/mistreat him, why he thought this would happen if he went back and whether he thought the authorities could and would protect him.  The applicant said that his representative did not tell him all this was on the form.  Despite being allowed further time, the applicant has provided no further comments or response and has submitted no further document to the Tribunal.

   The Tribunal does not accept the applicant’s explanation for failing to mention in his protection visa application the claims he is now making.  The Tribunal is of the view that if the applicant was giving a truthful account of what happened to him in India, the claims on his protection visa application and at hearing would not be so significantly different.

   The Tribunal also put to the applicant that the claims he was making at hearing were significantly different to those he made in his protection visa application and that the inconsistently [sic] may lead the Tribunal to doubt his evidence and doubt his claims.  By way of explanation as to why he claimed in his protection visa application that he claimed persecution at the hands of extortionists and that the state authority refused to protect him because of his political opinion, the applicant said that when he was having the problems he now claims occurred, he went to his MLA and told him about his situation and this is why politics was mentioned in his application.  When asked why the applicant had not mentioned anything about extortion in the hearing, he said that his competitor and the police had asked for money and his competitor had asked him to sell him his business.  The Tribunal does not accept the applicant’s explanation for the significant differences between the claims he made in his protection visa application and the claims he made at hearing.  The Tribunal is of the view that if the applicant was giving a truthful account of what happened to him in India, the claims on his protection visa application and at hearing would not be so significantly different.

   The Tribunal is of the view that it is significant that the applicant failed to mention in his protection visa application the claims he made at hearing.  The Tribunal is also of the view that it is significant that the applicant’s claims in his protection visa application and the claims made at hearing are significantly different.  As such, the Tribunal does not accept that the applicant has given a truthful account of his past experiences in India, his fear of harm or for the reasons for it should he return.  Therefore, the Tribunal does not accept the applicant suffered persecution at the hands of extortionists and that the state authority refused to protect him because of his political opinion.  The Tribunal does not accept that the applicant fears persecution from a business competitor because of his religion, being a Muslim.  The Tribunal does not accept that this competitor tried to burn down the applicant’s business because he undercut him.  The Tribunal does not accept that because of this action, the applicant moved out of his village and set up business in Mumbai.  The Tribunal does not accept that the person continued to harass him, sending friends, family and acquaintances to his business in Mumbai.  The Tribunal does not accept that this person sent the police who asked for bribes, that this person wanted the applicant to sell him his business for less than it is worth or that this person continues to threaten the applicant.  The Tribunal notes that even if the claims made a hearing were true they would not amount to persecution for a convention reason as they would amount to criminal activity and corruption and not persecution on the basis of religion.  However, as the Tribunal has not accepted the claims to be true, it is unnecessary for it to made such a finding.

6. The appellant brought an application for review to the Federal Magistrates Court on the grounds:

   1.Jurisdictional error

   2.Procedural error

7. The Federal Magistrate began consideration of these grounds at [26] of his reasons by observing that the grounds were bare assertions.  Nonetheless, the Federal Magistrate examined the procedures required under the Migration Act 1958 (Cth) (the Act) and in particular the procedures required by s 424AA and s 425 of the Act. The Federal Magistrate concluded that there had been no procedural error made by the Tribunal.

8. Further, the Federal Magistrate examined whether the reasons for decision disclosed any jurisdictional error.  The Federal Magistrate concluded that the decision turned on a rejection of the credibility of the appellant and on the evidence before the Tribunal it was open to it to come to that conclusion.  The Federal Magistrate therefore held that the appellant had not shown any jurisdictional error.

9. The appellant filed a notice of appeal in this Court on 11 June 2008.  The grounds specified were:

   1.Jurisdictional error

   2.Breached [sic] of s.424AA

   3.Breached [sic] of procedural fairness.

   These grounds, in essence, repeat the grounds raised before the Federal Magistrate. 

10. The appellant appeared at the hearing of the appeal and was assisted by an interpreter.  He raised two points.  The first was that he contended the Tribunal did not accept anything he said and did not tell him why.  To the extent that this ground raises a contest as to the fact findings of the Tribunal, it is not a ground open on this application.  The Court is concerned with the question whether the Federal Magistrate failed to detect any jurisdictional error.  This application is not an opportunity to re-contest the merit findings of the Tribunal.

11. To the extent that the first point is a complaint that the procedures in s 424AA of the Act have not been followed, similar to the second ground in the notice of appeal, the Federal Magistrate held at [31] as follows:

    31.      In terms of s.424AA of the Act, the Tribunal’s account of what            occurred at the hearings (again noting that the Tribunal’s account           remains unchallenged before the Court by any evidence brought by the applicant to the contrary) reveals that the Tribunal orally gave the          applicant clear particulars of the information that it considered would    be the reason, or part of the reason, for affirming the decision under review, that it ensured that the applicant understood why the      information was relevant, and the Tribunal reports that the applicant        confirmed that he did, that it gave the applicant the opportunity orally        to comment on, or respond to, this information and that it further           advised the applicant that he could seek additional time to comment on       such information, and given the applicant’s indication that he wished          further time, the Tribunal adjourned the review for that purpose.

12. The Federal Magistrate was correct in this reasoning and the conclusion which was reached.  The process adopted at the hearing is set out in the passages from the findings and reasons referred to earlier.  They clearly demonstrate that the provisions of s 424AA were complied with. 

13. The other matter raised by the appellant orally was that he was not given sufficient time by the Tribunal or the Federal Magistrate to provide evidence in support of his claim.

14. The decision of the Tribunal reveals that the appellant sought a further three months after the hearing on 19 September 2007 in order to provide further documents.  The Tribunal stated:

    When asked whether he wanted further time to comment or respond, the applicant indicated that he would like an additional 3 months to wait for the further documents.  The Tribunal indicated that it did not consider this a reasonable period in the circumstances but advised that it would reconvene the hearing in approximately a month and the applicant could provide any further comments or responses and any further documents the applicant wished the Tribunal to take into account.  The applicant said that if the file is incomplete he would not be able to hand it over to the Tribunal.

15. The hearing was resumed on 29 October 2007.  Regarding the resumed hearing the Federal Magistrate stated:

    32.      Nor can I see that the Tribunal’s declining to give the applicant an         adjournment of three months and giving three weeks instead reveals   any error on its part. The relevant requirement set out in            s.424AA(b)(iv) is that in circumstances where an applicant seeks          additional time to comment on, or respond to, information, the       Tribunal must adjourn the review if it considers that the applicant            reasonably needs additional time to comment on, or respond to,           whatever has been put to him or her.

    33.      In all the circumstances, it was open to the Tribunal to take the view      that the time available to the applicant was reasonable. The legislative          requirement is the provision of the opportunity in particular            circumstances, but as to the time to be made available, there is no         prescription, and that Tribunal is obliged to act in a reasonable manner          in the circumstances of the case before it. In my view, for the reasons     given by the Tribunal to which I have already referred, the length of       time provided by the Tribunal was reasonable in all the circumstances.

    The Court agrees with the Federal Magistrate that no breach of s 424AA(b)(iv) is disclosed in the steps taken by the Tribunal.

16. The appellant then asked the Federal Magistrate to remit the matter to the Tribunal so that he could submit papers which he had then obtained.  The Federal Magistrate determined that this matter was concluded by his decision that the time originally allowed by the Tribunal to allow the appellant to provide further documents had been a reasonable time. 

17. In addition to the two matters which the appellant has raised orally on this appeal I have considered whether the reasoning of the Federal Magistrate discloses any error.  In my view no such error is disclosed and the appeal must be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        3 September 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Appellant:	Ms N Johnson of Sparke Helmore

Date of Hearing:	19 August 2008
Date of Judgment:	19 August 2008