SZLTL v Minister for Immigration and Citizenship

[2008] FCA 1096

FEDERAL COURT OF AUSTRALIA

SZLTL v Minister for Immigration and Citizenship [2008] FCA 1096

Federal Magistrates Court Rules 2001
Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)

Randhawa v MILGEA (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510

SZLTL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 459 OF 2008

REEVES J
24 JULY 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 459 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	24 JULY 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant is ordered to pay the first respondent’s costs of the application fixed in the sum of $2,500.00.

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 459 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	24 JULY 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

BACKGROUND

1. This is an application for leave to appeal from a judgment of Federal Magistrate Smith delivered on 18 March 2008 dismissing, for lack of arguable grounds, the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 20 November 2007 and affirmed the decision of a delegate of the first respondent not to grant a protection visa to the applicant. 

2. The Federal Magistrate’s order was made following an application to show cause filed by the first respondent under Rule 44.12 of the Federal Magistrates Court Rules 2001 and since this is an interlocutory order, leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth). To be granted leave, the applicant must demonstrate two things: firstly, that the Federal Magistrate’s decision is attended by sufficient doubt to justify leave; and secondly, that the applicant would suffer substantial injustice if leave were not granted.

3. I shall briefly set out the background to the application before considering the Federal Magistrates decision.

4. The applicant is a citizen of India who arrived in Australia on 3 February 2007. He lodged an application for a protection visa on 15 March 2007 and set out the basis of his claims to fear religious persecution in Tamil Nadu in a statement attached to his visa application. In short he claimed that, because of his Muslim religion and his active involvement with two Muslim organisations (Tamilnadu Tawheed Jamaath (TNTJ) and Tamilnadu Muslim Munnaetra Kalaham (TMMK)), he was attacked on multiple occasions by extremist members of two Hindu parties (the Hindu Bharatiya Janata Party (BJP) and Rashtriya Swayamsevak Sangh (RSS)).

5. The applicant went on to claim that although he moved to Bangalore to avoid harm he was harassed there as well; that he left India for Malaysia in 2000 but when he returned two years later he was assaulted and hospitalised; that he then went into hiding and later moved to Bangkok; and that he found upon his last return to India that a friend had been murdered by extremists.

   THE TRIBUNAL’S DECISION

6. The applicant attended a hearing before the Tribunal on 28 June 2007 and tendered his passport. Following the hearing the Tribunal sent the applicant two letters seeking his input on inconsistencies the Tribunal perceived in his evidence and country information on religious conflict in Tamil Nadu. The applicant provided his comments and a copy of his relevant membership card and medical records.

7. The Decision Record of the Tribunal states that while it was satisfied that the applicant had been a member of the TNTJ, it was not satisfied that he had left India for the reasons claimed, and was not generally satisfied that the applicant was a credible witness. This conclusion was said to be based primarily on inconsistent accounts the applicant had given in relation to the attacks perpetrated on him (which the Tribunal considered did not truly occur); which meant that the Tribunal did not give weight to the documents the applicant provided in support.

8. The Tribunal also concluded that the applicant was not likely to suffer harm in India in the future on the basis of his Muslim religion or TNTJ participation by reference to country information.  In these circumstances the Tribunal was not satisfied that the applicant held a well-founded fear of Convention-related persecution in India and it affirmed the delegate’s decision.

   THE FEDERAL MAGISTRATE’S DECISION

9. The applicant had the benefit of a referral for free legal advice and leave to file an amended application, which he did on 7 March 2008. The Federal Magistrate’s reasons record (at [10]) that the applicant’s amended application “unfortunately contains elements copied from a precedent with no apparent relevance to his case”. The appellant attended the hearing on 18 March 2008 but “was not able to develop any of his arguments”. The Federal Magistrate summarised the applicant’s allegations in the following terms:

   • The Tribunal failed to assess whether the Indian authorities provided a level of protection commensurate with international standards;
   • The Tribunal failed to take into account relevant considerations;
   • The applicant was questioned without a break and felt stressed;
   • The Tribunal failed to properly apply the test of “Refugee” within the Refugees Convention or s91R of the Migration Act 1958 (Cth) (‘the Act’).

10. The Federal Magistrate found that the level of state protection offered in India was not in issue as the Tribunal had not accepted the applicant’s claims concerning past persecution. His Honour could not discern any evidence which would support the applicant’s other claims and could not see any arguable jurisdictional error on the part of the Tribunal. His Honour accordingly dismissed the application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.

    THE PRESENT APPLICATION

11. In support of his application for leave in this Court, the applicant filed an affidavit and a draft notice of appeal on 7 April 2008 which relevantly claim that:

    1.   The Federal Magistrate failed to find jurisdictional error or error of law, and failed to provide relief under s 39B of the Judiciary Act.

    2.   The Federal Magistrate dismissed the applicant’s case without considering the legal and factual errors of the Tribunal.

    3.   The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v MILGEA (1994) 52 FCR 437.

12. At the hearing before me on 23 July 2008, the applicant appeared in person unrepresented but assisted by an interpreter.  Ms Clegg appeared for the first respondent.  The applicant did not make any submissions of relevance to the application.  Ms Clegg essentially relied upon the outline of written submissions that had earlier been filed. 

13. In the outline of written submissions, the first respondent submitted that none of the proposed grounds of appeal is particularised and in the absence of particulars they are meaningless.  For example, they each refer generally to legal or factual errors without identifying what the errors are.  In any event, the first respondent submitted that so far as the proposed grounds of appeal rely on alleged factual errors, they are not reviewable, referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] and Abebe v The Commonwealth (1999) 197 CLR 510 at [137].

14. Finally, the first respondent submitted that the factual findings the Tribunal made about the applicant’s credibility were open to the Tribunal on the materials before it and were matters that were exclusively for the Tribunal. 

    CONSIDERATION

15. I agree with the submissions of the first respondent (above) that the proposed grounds of appeal in this matter are unparticularised and therefore meaningless.  Furthermore, they raise alleged errors that are clearly not reviewable by this Court.  The third ground of appeal is particularly puzzling because relocation has never been raised as an issue in these proceedings.  I do not therefore believe there is sufficient doubt in the correctness of the Federal Magistrate’s decision to justify leave to appeal being granted to the applicant.

16. Accordingly, I order the application for leave to appeal be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        24 July 2008

Solicitor for the Appellant:	In person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	23 July 2008
Date of Judgment:	24 July 2008