SZLTA v Minister for Immigration and Citizenship

[2008] FCA 1356

FEDERAL COURT OF AUSTRALIA

SZLTA v Minister for Immigration and Citizenship [2008] FCA 1356

SZLTA and SZLTB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 892 OF 2008

NORTH J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 892 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTA
First Appellant

SZLTB
Second 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.The appeal is dismissed.

2.The appellants 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 892 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTA
First Appellant

SZLTB
Second 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 28 May 2008: SZLTA & Anor v Minister for Immigration & Anor [2008] FMCA 667. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 November 2007 which affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister) to refuse to grant the appellants protection visas.

2. The appellants are husband and wife and the wife’s appeal depends for its success on the husband’s appeal.  The second appellant, the wife, did not appear at the hearing of the appeal but the first appellant said that he spoke on her behalf.  The appellants are nationals of India following the Hindu religion. 

3. The applications for protection visas claimed persecution in the hands of extortionists and that the state authority refused to protect because of the appellant husband’s political opinion.  At a hearing before the Tribunal the first appellant claimed that he ran a business with his father in Gujarat and that they were forced to close the business because of Muslim and BJP extortionists.  He claimed that after the shop was closed he lodged a complaint with the police but they took no action.  He also claimed that he was attacked by the extortionists and as a result spent two days in hospital.

4. The Tribunal found that the first appellant was not a credible witness because in contrast to the claims made in the application, at the hearing he did not mention two attacks which he said had been made upon him by the extortionists.  The Tribunal was not persuaded by his explanation that he had told his migration agent about the attacks, who had then failed to include the claim in the first appellant’s application.  The Tribunal additionally found that as Hindus in India the appellants would not be denied state protection if they were threatened or attacked in the reasonably foreseeable future. 

5. The application for review before the Federal Magistrates Court contained three grounds as follows:

   (1)The Refugee Review Tribunal denied proper application of law to the applicant.

   (2)The Refugee Review Tribunal denied natural justice to the applicant.

   (3)The Refugee Review Tribunal did not follow due procedure.

6. The Federal Magistrate found that without further elaboration the first ground could not succeed. 

7. The Federal Magistrate then dealt with grounds two and three together and examined the procedure followed by the Tribunal against the statutory requirements in ss 425 and 424A of the Migration Act 1958 (Cth) (the Act) and found no irregularity or procedural unfairness in these steps. The Federal Magistrate then observed that the Tribunal had sent a letter to the appellants on 23 August 2007, pursuant to s 424A of the Act, and that the appellants did not reply to that letter. The Federal Magistrate carefully reviewed the process adopted by the Tribunal in order to determine whether s 424A applied in the circumstances of the case beyond the contents of the letter sent on 23 August 2007. The Federal Magistrate found that the section had been complied with. The Federal Magistrate then found that the finding of fact as to the first appellant’s adverse credibility was open to the Tribunal.

8. Following these findings, the Federal Magistrate dealt with two additional grounds which were to be found in an amended application.  The first ground was that the Tribunal failed to consider whether the appellants had claims for persecution because of their political opinion.  The Federal Magistrate found that the Tribunal had considered this claim but rejected it on the basis of the adverse credibility findings. 

9. The Federal Magistrate then examined and rejected the second ground of the amended application, namely that the Tribunal made findings in the complete absence of evidence.  The Federal Magistrate found that it was open to the Tribunal to make the fact findings which it had in relation to each of the matters relied upon in the second ground. 

10. Finally, the Federal Magistrate dealt with several oral submissions made by the first appellant before the Federal Magistrates Court.  The Federal Magistrate dealt with the contention that he had difficulty in conveying his claims by virtue of the language barrier.  The Federal Magistrate observed that the Tribunal hearing was conducted with the assistance of a Gujarati interpreter and that were an allegation to be made that there was inadequacy in the interpretation more evidence would have been required.  The Federal Magistrate rejected the contention that there was a failure by the Tribunal to provide a fair hearing on this basis. 

11. The Federal Magistrate then dealt with an oral submission by the appellant that he was not given sufficient time to produce documents to the Tribunal in support of his claims.  The Federal Magistrate rejected this argument as follows:

    75. After the Tribunal hearing on 20 August 2007, the Tribunal wrote to the applicant pursuant to s.424A. That letter was dated 23 August 2007 and gave the applicant until 17 September 2007 to respond (CB 60- 62). The letter included the clear statement, in bold, that:

    If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.

    76.      The applicant did not respond to that letter, nor did he seek further       time in which to provide documents to the Tribunal.

    77.      The Tribunal's decision was not handed down until the 20 November     2007, giving the applicant some 3 months from the date of the      Tribunal hearing to pursue or obtain supporting documentation, or at            the very least to alert the Tribunal to any need on his part for an            extension of time. In these circumstances, I detect no procedural   unfairness in the Tribunal proceeding to hand down its decision. I            accept the submission by the first respondent in this regard that:

    Where the applicant had not responded to the invitation to comment on information and had not sought an extension of time to provide documents, it was open to the Tribunal to proceed to hand down its decision (transcript, p 5).

    (Original emphasis.)

12. On 17 June 2008 the appellants filed a notice of appeal in this Court.  The grounds of the appeal were stated as follows:

    1.The Honourable Federal Magistrates Court erred in law in determining whether this matter was reviewable in the Federal Magistrates Court.

    2.The Honourable Court also erred in law determining that the Federal Magistrates Court did not have the Jurisdiction to review this matter.

    3.The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the delegate.

    4.The Federal Magistrate erred in law in determining that the application was an abuse of process.

    5.I will provide more details later.

13. In the absence of any particulars the notice of appeal is virtually meaningless.  Consequently, the Court has scrutinised the reasoning of the Federal Magistrate for the purpose of identifying any error in her reasons.  No such error is evident. 

14. When asked to explain at the hearing the grounds upon which he relied in support of the appeal the first appellant repeated the final argument which was put to the Federal Magistrate, namely that he wished to have more time to consider the letter sent under s 424A.

15. The Court agrees with the reasoning of the Federal Magistrate set out at [75] – [77] of her reasons.  There is no substance in this contention.  Consequently, the appeal will be dismissed.

I certify that the preceding fifteen (15) 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 Appellants:	The first appellant appeared in person and on behalf of the second appellant
Solicitor for the First Respondent:	Ms N Johnson for Sparke Helmore

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