SZLYB v Minister for Immigration and Citizenship

[2008] FCA 1802

FEDERAL COURT OF AUSTRALIA

SZLYB v Minister for Immigration and Citizenship [2008] FCA 1802

Migration Act 1958 (Cth) s 424A

SZLYB & Anor v Minister for Immigration & Anor [2008] FMCA 1349

SZLYB and SZLYC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1589 of 2008

MARSHALL J
27 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1589 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLYB
First Appellant

SZLYC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	27 NOVEMBER 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.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1589 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLYB
First Appellant

SZLYC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	27 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants have appealed from a judgment of a Federal Magistrate delivered on 26 September 2008 (SZLYB & Anor v Minister for Immigration & Anor [2008] FMCA 1349) which dismissed their application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the first appellant a protection visa. The second appellant’s claims relied on her being part of the first appellant’s family group.

2. The appellants are husband and wife from the state of Gujarat in India. The appellant husband’s fear of persecution is grounded in his contention that he had financial problems and owed a very large debt.  As a result, he claims that Muslim extremists who were unable to recover the debt want to kill him.

3. The appellants state that they own a factory that supplies submersible pumps and spare parts. The appellant husband says that his factory employed 15 people, including 12 Muslim workers.

4. The appellants say that in January 2001, there was an earthquake which destroyed their home and part of the factory requiring extensive renovation and borrowings. This led to the appellant husband’s mother suffering ‘deep mental shock’ and the appellants incurred medical expenses for her treatment.

5. The appellants say that in 2002 there were riots in Godhra in India that involved  a dispute between Hindus and Muslims and, as most of the appellant husband’s employees were Muslim, the business almost ceased to operate. He claims that during the riots, the factory was damaged and materials were stolen. The appellants contend that this caused them economic, social and mental harm. The appellant husband claims that his debts rapidly increased and he was unable to meet his debts. He says that as most of the suppliers were Muslim, they sent extremists to his factory to collect the debt. He states he was tortured and he and his family were pressured. He states that when he refused to meet their demands they assaulted him and he was severely injured. The appellants say that because their lives were in danger they borrowed money from friends to flee. They say that they were forced to leave their young son in India.

6. The appellant husband also says that he cannot avail the protection of the police as it is ‘run by money’ and approaching the police would prove futile for a person in his position.

7. The appellants’ grounds of appeal appear not to have been drawn by a lawyer and they are not particularised. In their notice of appeal, the appellants advance the following three grounds:

   1.His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well —founded fear. The Tribunal misapplied the express and implied meaning of term "Well-founded fear and Refugee from the UN Convention in relation to applicant's fear of persecution The Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes [persecution] as a member of a particular social group and due to religious belief persecution. The appellant's claim was based on his religious belief.

   2. Hon. Federal Magistrate failed to hold that the Tribunal has failed to carryout the real chance test as required by the law but has resorted to balance of probabilities and other types of tests.

   3. The Appellant claims that there was certain information used by the Tribunal to make decision. The Appellant was not provided opportunity to comment. The Tribunal made a jurisdictional error when it did not disclose the information in accordance with s 424 A (I) of the Migration Act.

8. The language of ground 1 above is unclear. Presumably, the appellants contend that the Federal Magistrate should have found that the Tribunal’s decision involved jurisdictional error because it was arbitrary or was sufficiently unreasonable as to constitute a legal error. The appellants also raise other grounds within ground 1. They say that the Tribunal erred in law by misapplying the law to the facts. They also say that the Tribunal adopted the wrong test for what constitutes a well founded fear of persecution. Finally, in the last line of ground 1, they state that their claim was based on their religious beliefs.

9. Ground 1 lacks any basis and is unmeritorious. I have carefully considered the Tribunal’s reasons and, based upon the material before it, it was open to the Tribunal to reach the decision it did. The Tribunal did not believe the appellant husband due to inconsistencies in his evidence. The Tribunal observed:

   The Tribunal discussed the applicant's claims on the Department file with him during the hearing and asked him whether all his submitted claims and information were true. He insisted that they were truthful. However, when the applicant's oral evidence is compared and contrasted with the statements attached to his visa application the Tribunal finds his claims to be confusing and contradictory. For instance it took three attempts by the Tribunal to secure a response to its question whether the applicant had approached the Indian police authorities to seek protection from the claimed harm and harassment by the purported Muslim persecutors. The applicant stated that despite the seriousness of his claims he had not done so because they were "middle class, small people" and that approaching them was "useless" and they was "a political relationship with the higher authorities".

10. The Tribunal refused to accept the appellant husband’s claims of persecution because it found the ‘applicant to be an unreliable witness, not a witness of truth and a person of poor credibility’. The Tribunal said that:

    The Tribunal finds that he does not, in fact, fear persecution for the reasons he has claimed. The Tribunal does not accept that the applicant was ever harassed and attacked by Muslims in Ahmedabad for reasons of his religion as a Hindu. The Tribunal does not accept that the applicant was ever harassed and attacked by Muslims in Ahmedabad because of his business failure which brought him large unpaid debts to Muslims who were either traders or dealers with him or his own workers. The Tribunal does not accept that the applicant was ever harassed and attacked by those particular Muslims in Ahmedabad who then demanded payment of their debts and used those debts as a reason to attack and harass him…

11. The following reasoning of the Tribunal is also relevant:

    The Tribunal does not accept that, if the applicant were' to return to India now or in the reasonably foreseeable future, there would be a real chance that he and his spouse or any family members will be persecuted by his Muslim employees or any traders with whom he has dealt for reasons of his religion or his membership of a particular social group (persecuted unsuccessful Hindu businessmen with high unpaid debts to Muslim traders and workers) for the purposes of the Convention.

12. The Tribunal did not err in the manner contended by the appellants in what appears to be the submissions made in ground 1. Further, the appellant husband’s claim that he feared persecution due to his religion was squarely rejected by the Tribunal due to his poor credibility and it was open to the Tribunal to do so. At pp 2-3 of its reasons for decision, the Tribunal carefully analysed the meaning of ‘refugee’ and ‘well founded fear’ and applied those concepts to the facts before it in an unexceptionable way.

13. The appellants’ second ground of appeal concerns the failure of the Tribunal to apply the real chance test. This ground cannot be sustained. The Tribunal simply did not accept the appellants’ claims and it did ‘not accept that, if the applicant were to return to India now or in the reasonably foreseeable future, there would be a real chance that he and his spouse or any family members will be persecuted’.

14. It should be noted that grounds one and two were not raised below. The Court can only interfere with the judgment below where there is an appellable error. To raise these grounds on appeal now, the appellants require the leave of the Court. Leave should be refused as those grounds have no prospect of success.

15. Ground 3 contends that the appellants were not provided certain information in accordance with s 424A of the Migration Act 1958 (Cth). The appellants have provided no particulars as to what information was not provided to them. I note that after the Tribunal hearing, the appellants were sent a letter pursuant to s 424A giving them an opportunity to respond to the Tribunal’s suggestion that the appellant husband was of questionable credibility. The appellants chose not to respond to this letter. A similar ground was raised in the Court below. I have carefully considered the learned Federal Magistrate’s reasons in relation to this issue, and in my view, the Federal Magistrate correctly dismissed this ground.

16. One of the grounds in the Court below included the contention that the Tribunal's decision is tainted by apprehended bias. The appellants say that the Tribunal, without checking the facts, launched an attack upon the appellant husband’s credibility by inferring that the facts of his case were a duplication of some other claim in an unspecified case which involved another submersible pump factory. This led to the Tribunal viewing the appellant's oral evidence and his factual assertions through a prism of disbelief. In written submissions filed by the husband appellant, it is alleged that the Tribunal was hostile to him. No basis for that contention has been established. The Federal Magistrate dismissed the submission that the Tribunal’s decision was tainted with bias. In so doing, the learned Federal Magistrate noted that the ‘Tribunal ultimately rejected the applicant husband's claims based on a credibility finding, which does not prove that the Tribunal closed its mind to the evidence before it’. The Federal Magistrate went on to say:

    I also do not consider that its discussion of this evidence shows that it closed its mind to relevant evidence when it arrived at its decision. I can find no evidence that the Tribunal closed its mind to evidence favourable for the applicant at a point where it was required to keep its conclusions open.

17. In my view, the Federal Magistrate correctly dismissed this ground.

18. The appellants are not represented by a lawyer and have not raised any new grounds which were not dealt with below, other than an allegation that there was inadequate translation of one of the husband appellant’s answers to a question from the Tribunal. No such claim was made before the Court below. No explanation has been advanced for the failure to do so and no evidence has been advanced to justify the granting of leave to raise this new matter.

19. I have carefully considered the Tribunal’s reasons and the decision of the Federal Magistrate. I can discern no jurisdictional error in the Tribunal’s reasons. The Federal Magistrate correctly dismissed all the grounds advanced in the Court below.

20. For the above reasons, the appeal is dismissed with costs.

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

Associate:

Dated:        27 November 2008

The first appellant appeared for both appellants.
Solicitor for the Respondents:	Clayton Utz
Counsel for the Respondents:	Mr M Cleary

Date of Hearing:	27 November 2008
Date of Judgment:	27 November 2008