SZLVR v Minister for Immigration and Citizenship

[2008] FCA 1083

FEDERAL COURT OF AUSTRALIA

SZLVR v Minister for Immigration and Citizenship [2008] FCA 1083

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

SZLVR and SZLVS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 500 OF 2008

REEVES J
23 JULY 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 500 OF 2008

BETWEEN:

SZLVR
First Applicant

SZLVS
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	23 JULY 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

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 500 OF 2008

BETWEEN:

SZLVR
First Applicant

SZLVS
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	23 JULY 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1This is an application for leave to appeal a decision of Federal Magistrate Smith delivered on 26 March 2008. His Honour dismissed the applicants’ application to review a decision of the Refugee Review Tribunal (“the Tribunal”) which was delivered on 6 December 2007. His Honour’s order was made following an application to show cause by the first respondent under Rule 44.12 of the Federal Magistrates Court Rules 2001 and, since such an order is an interlocutory order, leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2To be granted leave, the applicants must demonstrate that the Federal Magistrate’s decision is attended by sufficient doubt to justify leave and, in addition, that the applicants would suffer substantial injustice if leave were not granted.

BACKGROUND – SUMMARY OF FACTS

3The applicants are a Hindu husband and wife who came to Australia on tourist visas on 9 June 2007, from the Gujarat province of India.  They applied to the Department of Immigration and Citizenship for a protection visa on 12 July 2007. The applicant wife’s application is based upon the claims of her husband.

4The applicant husband filed a statement in support of the visa application which set out the basis for the couple’s claim to fear persecution by Muslims. The applicant husband claimed that he had been on good terms with the Bharatiya Janata Party (‘the BJP’), a Hindu political party, and had “joined actively in works of RSS” (or ‘Rashtriya Swayamsevak Singh’ a Hindu nationalist party).  He explained that these affiliations had helped him to purchase an electrics shop.

5The shop was in a Muslim area and, although there had been no conflict initially, the applicant husband claimed that following an earthquake in 2001 and riots between Hindus and Muslims in 2002, he suffered a downturn in his business and he had been assaulted by Muslim creditors. He claimed that the BJP and RSS ignored his requests for help and that the (Muslim) police refused to protect him, and that eventually the bank auctioned his business and home. He stated that he and his wife left India in 2006 and came to Australia (via Malaysia) so that he might work and repay his debts.

THE TRIBUNAL’S DECISION

6The applicant husband attended a hearing before the Tribunal on 23 October 2007 and gave evidence. The Tribunal’s Decision Record states that the Tribunal put its various concerns to the applicant husband at hearing, including the fact that Hindus are the majority in Gujarat province and the ruling party is the BJP, and the fact that the applicant’s husband’s claims did not appear to have a nexus to the Refugees Convention.

7 In its decision the Tribunal concluded that, while the applicant husband may have been attacked, such attacks were due to commercial factors (ie his failure to repay his loans) and not related to any political or religious persecution.  The Tribunal accepted that the applicants’ business had suffered by reason of the earthquake and the riots in 2002, but again, these events were not directed at the applicants for any Convention-related reason “either personally, or as a member of a group”. 

8The Tribunal also considered that if the applicant husband had been subjected to attacks on the basis of his political/religious opinion, he would have been able to seek protection from the BJP-ruled Gujarati government.  The Tribunal concluded that it was not satisfied that on all the evidence before it, the applicants held “a subjective fear of serious harm”. As a result of these findings, the Tribunal was not satisfied that the applicants held a well-founded fear of persecution for a Convention-related reason and it affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE’S DECISION

9The applicants were referred for free legal advice and given leave to file an amended application. An amended application was filed on 12 March 2008 and a submission was presented at the hearing on 26 March 2008, but as the Federal Magistrate notes at [13] of his reasons, “[u]nfortunately, most of the submissions in these documents are taken from other cases, or do not appear to have a relationship to the present Tribunal’s decision”. His Honour therefore considered the initial application as well as the amended application.

10The Federal Magistrate was unable to “discern any arguable substance” in relation to the original ground, that the Tribunal was “wrong in concluding that the applicant’s claims were not Convention-related”. Likewise his Honour found that the first ground in the amended application, going to s 91R of the Migration Act 1958 (Cth) (‘the Act’), had no arguable substance and, even if the Tribunal had made an error in assessing the seriousness of the harm suffered by the applicants under that section, it would not have altered the outcome.

11In relation to the “unparticularised contentions of breach of s.424A(1)”, his Honour could not discern any information which would attract the operation of that section. His Honour found there was no basis to any suggestion to be found in the third ground of the amended application that the Tribunal failed to address some part of the claim; and his Honour similarly found that any alleged error about the Tribunal’s reasoning on the issue of relocation was immaterial.

12 The Federal Magistrate therefore found that there was no arguable case raised by the applicants and as a result the application for judicial review was dismissed under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.

GROUNDS OF THE PRESENT APPLICATION

13In support of their application for leave to appeal filed in this Court on 11 April 2008, the applicants filed an Affidavit and a draft Notice of Appeal. The single ground in the Notice of Appeal reads:

The FM failed to find that the tribunals’ decision was in breach of s424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

(a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s424A (1).

The Affidavit sworn by the applicant husband on 11 April 2008 asserts in addition that he did not have a proper opportunity to argue his case before the Federal Magistrate and that he has a “strong arguable case” that his Honour failed to consider.

THE CONTENTIONS

14At the hearing of this application before me, the applicant husband appeared in person unrepresented but assisted by an interpreter.  Ms Knight appeared for the first respondent.  The applicants had not filed any written submissions and the applicant husband did not make any oral submissions of any relevance to this application.  Ms Knight relied upon the outline of written submissions she had earlier filed and submitted, in summary, that the applicants had no prospects of success in their appeal as no error had been demonstrated on the part of the Federal Magistrate.

CONSIDERATION

15The sole ground of appeal before me is an alleged breach by the Tribunal of s 424A(1) of the Act. The applicants have provided no particulars relating to the information they allege the Tribunal failed to disclose to them in accordance with s424A(1) of the Act. As noted above, the situation was the same before the learned Federal Magistrate in that the equivalent ground of review before him alleged an unparticularised breach of s 424A(1) of the Act. Beyond the lack of particulars, his Honour could not discern any information which might attract the operation of that section. For my part, I cannot detect any error in the Federal Magistrate’s reason for rejecting that ground and I do not therefore consider there is sufficient doubt in the correctness of his Honour’s decision to justify granting leave to appeal to the applicants.

16Accordingly, I order the application for leave to appeal be dismissed. I will hear the parties on costs.

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: 23 July 2008

The Applicant appeared in person.
Counsel for the Respondent:	Ms E Knight
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July 2008
Date of Judgment:	23 July 2008