SZLTG v Minister for Immigration and Citizenship

[2008] FCA 1317

FEDERAL COURT OF AUSTRALIA

SZLTG v Minister for Immigration and Citizenship
[2008] FCA 1317

SZLTG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1014 OF 2008

RARES J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1014 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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 1014 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT
(REVISED FROM THE JUDGMENT)

1. This is an appeal from a decision of the Federal Magistrates Court, refusing the appellant’s claim for constitutional writ relief against a decision of the Refugee Review Tribunal, affirming a decision of the delegate of the Minister not to grant the appellant a protection visa:   SZLTG v Minister for Immigration [2008] FMCA 835.

2. The appellant is a citizen of India, who came to Australia in April 2007 and applied for a protection visa on 17 May 2007.  The delegate refused to grant the visa in early July 2007, and the tribunal affirmed that decision on 30 October 2007.

   THE APPELLANT’S CLAIMS IN HIS PROTECTION VISA APPLICATION

3. In essence, the appellant claimed that he had been responsible for a construction site on which building work – being a large water tank – had collapsed, killing two workers.  The workers were of a lower caste than he.  He was proceeded against in the Indian courts, which found that he had not been responsible for the accident.  In his application for a protection visa the appellant said that the family members of the deceased had tried to settle the matter out of court because they wanted a large sum of money from him, but that he had refused and asked that the matter proceed through the Court. 

4. After the decision was given in his favour, the appellant claimed that the deceased’s relatives had asserted he had bribed the judge.  He claimed that the relatives were very poor, but from a strongly bonded community in the Dalit caste, and that they tried to kill him because he refused to give money.  He claimed that the whole Dalit community were a threat to him, and that they had very strong support from politicians.  He also claimed that the Indian authorities would not protect him because the workplace accident had become a very big issue in his city, and the lower caste minority were upset with the result of the court case. 

5. The appellant claimed that after the Court decision there had been two attempts on his life:  one in which the brakes of his car had been altered so that he hit a tree while driving;  and the second, in which someone had tried to shoot him but the bullet missed.  He claimed that the police had done nothing.  He claimed he had sold his business and moved to another city, and then came to Australia, leaving his wife and daughter in India.

   THE DELEGATE’S DECISION

6. The delegate found himself unable to accept that the appellant’s claimed fear of persecution was well-founded, or Convention related.  In the latter respect, the delegate considered that the only Convention ground that could be applicable to the appellant was a well-founded fear of being persecuted for reasons of his membership of a particular social group, but that his claims failed to bring him within any recognisable category.

   THE PROCEEDINGS IN THE TRIBUNAL

7. The appellant applied to the tribunal for a review of the delegate’s decision.  During the course of the hearing before the tribunal, the appellant sought to provide it with copies of police reports and other documents relating to the accident with the water tank, which were written in Gudjarati.  The tribunal said to him, as it recorded in its decision record, that the police reports would, in effect, simply corroborate what he had told the tribunal about the original incident, and were not necessary for it to consider because he had claimed that the persecution had started later, around the time of the Court decision, which was the more relevant period of time.

8. The appellant had tried to tender what he said were the same documents in Gudjarati, with no English translation, before the trial judge, who rejected them.  This morning he has sought to tender English versions of the documents.  I considered the documents in English without objection, but rejected them on the ground that they would not have demonstrated anything different to the findings of the tribunal. It essentially accepted the appellant’s version of what happened in the accident.  The documents corroborated his account that the Indian court had found in his favour on the allegations that he had been responsible for the deaths of the two workers.  In my view, those documents could not have made any difference to the outcome of the proceedings in the tribunal, even if it had accepted them in Gudjarati and had the assistance of an interpreter at the hearing to understand their gist. 

9. The tribunal heard the appellant elaborate upon his claims.  During the course of the hearing it raised with him a number of matters which appeared inconsistent between the evidence he had given and his earlier account in his application for a protection visa.  In addition to the two attempts on his life which he referred to in his application for a protection visa, the appellant  claimed at the hearing that on a third occasion shortly before he left India for Australia, two people came from behind him with a sharp object and slashed him, showing the tribunal a wound on his back.  He said he had not reported the incident to the police as they had done nothing. 

10. Following the conclusion of the hearing, the tribunal sent the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) in which it set out seven matters it regarded as being contradictory or inconsistent between what had been stated in the application which the appellant had made for a visitor’s visa on 9 January 2007 while in India, the application for a protection visa and the evidence that he had given at the hearing before the tribunal. The tribunal pointed out that those inconsistencies might indicate that his claims were not true or should not be believed, and invited him to comment.

11. The appellant provided a detailed written response to the tribunal’s letter.  In its findings and reasons, the tribunal explained that it did not find the appellant to be a credible witness, and elaborated in detail why that was so.  It did not accept the appellant’s explanation for failing to include the attack with a knife in his application for a protection visa, because it found that had such an attack occurred, it would have been an important matter to have included in the support of his claim, given the seriousness of the incident. 

12. Similarly, the tribunal noted that the appellant’s claims of having been threatened by politicians seeking to induce him to settle with the deceased’s families had not been articulated in his claim for a protection visa.  It observed that threats from politicians of this kind, being from both municipal and State politicians, were very serious for a person such as the appellant who was in business.  The tribunal found that it would be expected for him to have included any such threats in support of his claim for refugee status.  The tribunal also noted some inconsistencies between the timing at various stages of his accounts which the appellant gave for selling his business.

13. The tribunal concluded that he was not truthful and that his statements, both oral and in writing, to the department and to the tribunal lacked credibility.  It found that it was not satisfied that the appellant had been threatened by the relatives of the dead workers and politicians prior to the conclusion of the court proceedings, nor was it satisfied that he had had his vehicle’s brakes tampered with so that he had an accident, or was shot at or stabbed on the building site.  The tribunal also found that it was not satisfied that relatives of the dead workers had tried to harm the appellant and his family by threats or fear while he was in another city.

14. The tribunal found that it was not satisfied that the appellant or his family would suffer harm from relatives of the dead workers or politicians from the claimed accident in the reasonably foreseeable future were he to return to India.  The tribunal accepted that there was corruption in the Indian police force but accepted country information that low caste Indians, such as Dalits, were more likely to be persecuted than being themselves responsible for persecution.  It found that as a higher caste Hindu, it was unlikely that the appellant would not receive protection from the police.  The tribunal found that there was no plausible evidence that the appellant had suffered persecution in India because of his political opinion, imputed political opinion, membership of a particular social group, religion or any other Convention reason.  It found that there was no evidence that there was a real chance that the appellant would suffer persecution for a Convention reason, it either now or in the reasonably foreseeable future, were he to return to India.  Accordingly, the tribunal rejected his claim that he was a person to whom Australia had protection obligations under the Refugee Convention.

    THE TRIAL JUDGE’S DECISION

15. The appellant argued three grounds of appeal before the trial judge. First, that the Tribunal’s decision was in breach of s 424A, because it did not disclose information in accordance with that section, secondly, the tribunal had made an error of law and had denied procedural fairness. And thirdly, the tribunal had denied the appellant natural justice because it was wrong in concluding his claims were not convention related, “such as significant financial hardship.”

16. The trial judge rejected each of those claims for reasons which appear to be correct.  He concluded that the tribunal’s decision did not disclose any arguable case that it had been made involving any jurisdictional error.  I agree.

    THIS APPEAL

17. Before me the appellant put one ground of appeal, namely that the Federal Magistrates Court erred in failing to hold that it was open to the tribunal to find that he was a refugee within the meaning of the Act.  The appellant particularised that ground by claiming that either his Honour or the tribunal failed properly to apply the consideration that his claim for refugee status ought to be given the benefit of the doubt, in circumstances where the tribunal should have considered the possibility that his claims were plausible, as he asserted they were.

18. In my opinion, this ground is nothing more than a complaint that the tribunal should have decided the claim differently on its merits.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said that any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. The Court’s function is to review whether the decision-maker acted in accordance with the legislation governing the exercise of the jurisdiction so as to ensure a fair procedure was accorded in arriving at the decision in accordance with law. It is not the role of the Court to consider the merits of the ultimate decision in that context.

19. Essentially, the tribunal’s decision turned on its assessment that the appellant was not a witness whose evidence it was prepared to believe in relation to the various incidents that he claimed gave rise to a well-founded fear of persecution.  Even if it had accepted those claims, in my opinion, his application must have failed because it did not disclose any Convention reason for the persecution.  The basis on which the relatives and their families were seeking to receive money was because the appellant was the proprietor of, or responsible for, a building site on which two people had been killed in a workplace accident, without their families being paid compensation.  That had the character of an industrial dispute between individual employer and individual employees, rather than anything to do with a well-founded fear of persecution for reason of membership of a particular social group or other Convention reason.

20. In my opinion no jurisdictional error has been shown, and the appeal should be dismissed. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        26 August 2008

The Appellant:	Appeared in person
Solicitor for the First Respondent:	Ms T Quinn, DLA Phillips Fox

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