SZLXL v Minister for Immigration
[2008] FCA 1084
•23 July 2008
FEDERAL COURT OF AUSTRALIA
SZLXL v Minister for Immigration [2008] FCA 1084
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001
Federal Court of Australia Act 1976 (Cth)SZLXL and SZLXM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 475 OF 2008
REEVES J
23 JULY 2008
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 475 OF 2008
BETWEEN:
SZLXL
First ApplicantSZLXM
Second ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE 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 475 OF 2008
BETWEEN:
SZLXL
First ApplicantSZLXM
Second ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
23 JULY 2008
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for leave to appeal from a judgment of Federal Magistrate Smith delivered on 8 April 2008. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal’s decision was delivered on 8 January 2008 and affirmed the decision of a delegate of the first respondent not to grant protection visas to the applicants.
Federal Magistrate Smith dismissed the applicants’ application for review under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001. This is an interlocutory order (as set out in that Rule) and as such leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth). To obtain leave, the applicants must demonstrate that the decision of the Federal Magistrate is attended by sufficient doubt to justify such leave and, in addition, that they, the applicants, would suffer substantial injustice if leave were not granted.
BACKGROUND – SUMMARY OF FACTS
The applicants are a husband and wife who are citizens of India. They arrived in Australia on 23 May 2007 and lodged an application for a protection visa with the Department of Immigration and Citizenship on 3 July 2007. The applicant wife’s application is based upon the claims of her husband.
The applicant husband filed a statement in support of the visa application which set out the basis for the couple’s claim to fear political persecution. The applicant husband stated that because of his work on behalf of the Vishwa Hindu Parishad (‘the VHP’) and the Bharatiya Janata Party (‘the BJP’), Hindu cultural and political organisations respectively, he had been insulted and attacked by Muslim activists in his home town of Ahmedabad. He said that both he and his wife had been threatened. He claimed that despite the fact that he had to be hospitalised for a week following the last attack, the police did nothing to assist him and in fact made false allegations against him.
THE TRIBUNAL’S DECISION
The applicant husband attended a hearing before the Tribunal on 23 October 2007. Neither he nor his wife accepted an invitation to attend a second hearing on 27 November 2007. The Decision Record of the Tribunal states that it did not accept that the applicant was a credible witness due to inconsistencies in, and vagueness of, his evidence. The Tribunal did not accept that such inconsistencies were the result of mental stress, rather they found that the applicant husband’s account was not credible.
The Tribunal further found it incredible that the BJP-controlled Gujarati authorities would refuse assistance to a party member. In these circumstances, the Tribunal did not accept that the applicant husband had been a member of the BJP, it did not accept that the applicants had suffered Convention-related persecution and it was not satisfied that the applicants were likely to be harmed as a result of actual or perceived association with the BJP and VHP if they returned to India.
THE FEDERAL MAGISTRATE’S DECISION
On his first appearance before the Federal Magistrate the applicant husband was granted leave to file an amended Application and referred for free legal advice, prior to attending the show cause hearing on 8 April 2008. The applicant husband filed an amended Application and a written submission in support on 28 March 2008. The Federal Magistrate considered both the grounds raised in the initial Application and those raised in the amended Application. The grounds asserted, in essence, that the Tribunal had failed:
(a) to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”);
(b) to consider the test of persecution under the Refugees Convention;
(c) to consider all of the evidence before it, and
(d) to give the applicant an adequate opportunity to give evidence at the hearing.
The Federal Magistrate noted that the applicants had failed to put any evidence before him and on the basis of the only material before him (being the Tribunal’s Decision Record), his Honour found himself unable to discern any support for the contentions advanced by the applicants. His Honour noted that “the Tribunal’s reasoning points to abundant rational reasons for disbelieving the applicant [husband]. Its conclusions based upon its disbelief were inevitable”. The Federal Magistrate therefore dismissed the application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, concluding that none of the grounds disclosed an arguable case.
GROUNDS OF THE PRESENT APPLICATION
The applicants filed an application for leave to appeal in this Court on the day of the Federal Magistrate’s decision, 8 April 2008. The applicants filed an Affidavit in support and a draft Notice of Appeal which raises similar grounds as those agitated before the Federal Magistrate. In short, the applicants claim that the Tribunal committed jurisdictional error by failing to properly assess their fear of harm in India, and that the Tribunal decision was affected by bias.
THE CONTENTIONS
At 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 appeals, as no error had been demonstrated on the part of the Federal Magistrate.
CONSIDERATION
As has been recorded above, the Tribunal rejected the applicants’ application for review of the delegate’s decision on the basis that the applicant husband was not a credible witness, due to inconsistencies and vagueness in his evidence. The assessment of the credibility of an applicant is exclusively a matter for the Tribunal. The Federal Magistrate rejected the applicants’ application for judicial review of the Tribunal’s decision on the ground that there were abundant rational reasons for the Tribunal to disbelieve the applicant. For my part, I cannot detect any error in the Federal Magistrate’s reason for rejecting the applicants’ application and I do not therefore consider there is sufficient doubt in the correctness of his Honour’s decision to justify granting the applicants leave to appeal.
Accordingly, I order the application for leave to appeal be dismissed. I will hear the parties on costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 23 July 2008
Counsel for the Applicants: Applicant husband in person Solicitor for the First Respondent: Australian Government Solicitor Counsel for the First Respondent: Ms E Knight
Date of Hearing: 22 July 2008 Date of Judgment: 23 July 2008
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