SZMKQ v Minister for Immigration and Citizenship
[2008] FCA 1978
•27 November 2008
FEDERAL COURT OF AUSTRALIA
SZMKQ v Minister for Immigration and Citizenship
[2008] FCA 1978
SZMKQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1511 of 2008
RARES J
27 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1511 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMKQ
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
27 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
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
NSD 1511 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMKQ
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
27 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
When the matter was called this morning, there was no appearance by the applicant. The court file revealed that, on 14 October 2008, a notice of listing was sent to the applicant. At that time, Spender J was assigned to hear the matter. Subsequently, on 31 October 2008, a further notice of listing was sent to the applicant when the matter had been reassigned to me. Each of those notices of listing is addressed to the applicant at his address for service in the application. There may be a typographical error in that address, because Goulburn Street Liverpool is spelt without an “o”. The second notice of listing was also sent to the applicant’s post office box, as set out in his draft notice of appeal attached to his affidavit filed on 23 September 2008.
The solicitors for the Minister sent a letter, on 5 November 2008, to the address at Goulburn Street, spelt without an “o”, and subsequently on 24 November 2008 to both Goulburn Street, correctly spelt, and to the post office box address in the draft notice of appeal.
After I called the matter for hearing, with the assistance of the court interpreter, a telephone call was made to the mobile telephone number given by the applicant in his Federal Magistrates Court papers. That telephone number had been switched to voicemail so that he was not able to be contacted.
I am satisfied that the applicant has had full notice of today’s hearing and that I should proceed to deal with the matter substantively.
The application seeks leave to appeal from a decision of the Federal Magistrates Court, dismissing an application for constitutional writ relief on the ground that there was no arguable case for making the relief claimed: SZMKQ v Minister for Immigration [2008] FMCA 1287. The trial judge carefully reviewed the material before him.
THE DELEGATE’S DECISION ON THE APPLICATION FOR A PROTECTION VISA
The applicant is a citizen of India who came to Australia in December 2007. He made an application for a protection visa on 8 January 2008. Later in January 2008, the delegate refused his application on the ground that the fears he claimed were essentially related to matters that were best described as private and criminal in nature and not related to any of the reasons enumerated in the Refugees Convention.
The delegate concluded, as his Honour found, that there was no evidence that the government of India was unwilling or unable to afford protection to the applicant.
THE PROCEEDINGS IN THE TRIBUNAL
He then applied to the Refugee Review Tribunal for a review of that decision. Although he did not respond to letters under ss 424 and 424A of the Migration Act 1958 (Cth), which the tribunal had sent to him seeking information and comments, the applicant did attend the hearing held by the tribunal and gave evidence. The tribunal found that the applicant’s claims to it were not true and that he had not established that he was a refugee. It found that there was no real chance that he would face persecution if returned to India.
Essentially, he had claimed in his protection visa application that underworld figures had asked for money from his father or his father’s successful business. He claimed that he had ignored those requests and then received threats himself. He claimed that he went to the police for help, but that they were scared when they heard the names of the people involved. After that, he claimed that in early April 2007, the people went to the business’ shop with guns and killed one of the servants and that he heard about this incident from his father and went to the police. He claimed that, at the police station, he was accused of killing the servant as the servant had wanted a partnership in the father’s business, but that after he had bribed the police, they let him go. He said that he was threatened that night and, as a result, left for Delhi and applied for a visa to visit Australia.
In light of those claims, it is not surprising that the delegate considered the basis on which a protection visa had been sought was not sustainable. All that was revealed in the visa application amounted to allegations of criminal activity and a particular incident of police corruption. There was nothing in that material to suggest that there was any substance to the applicant having any basis to a claim that he had a well-founded fear of persecution for any of the Convention reasons.
When he applied to the tribunal for review, he gave evidence to it that his family shop was in a Hindu area, but he and his family were Muslims and that the persons living in the area had connections with people in the underworld. He claimed that the police would not offer him protection because they were themselves Hindus and his family, Muslims. He also claimed that a politician was behind or associated with the criminals. He named the politician and claimed that he was a member of the BJP party. He also claimed to the tribunal that the killing had occurred somewhere else, because he claimed to have gone to the victim’s house to inquire why he had not come to work.
The tribunal recounted that the appellant was unable to give any precise dates of the incidents, beyond saying that they were between eight and nine months beforehand and later, eight to ten months before the time of the tribunal hearing. The tribunal raised with the applicant its concerns about the lack of information he had provided, the fact that he did not leave India until months after the claimed events he had described and independent country information, all of which indicated to it that his fear might not be well-founded or genuine. The tribunal also raised with him the fact that it was concerned that he had only provided claims of political and religious persecution orally to it, being after the delegate’s decision had been made. It invited the applicant to give it any further information, but he said he had nothing to add.
In those circumstances, the tribunal concluded that the applicant was not a witness of credit and his evidence was vague and lacking in detail. It made the observation that it would consider that events as distressing as the murder of a long-term employee and the applicant being detained and being accused of the murder would have stayed in the applicant’s mind. Yet, his evidence to it was inconsistent and involved the applicant telling the tribunal that he could not remember or provide further details of particular incidents in those events. The tribunal concluded, after reviewing the material before it, that it did not regard his oral evidence to it concerning his claims of persecution as true. Nor did it accept as credible the applicant’s explanation that he forgot details of important elements of his claim or was under mental stress.
THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT
The trial judge recorded that the matter had been set down before him to consider whether the applicant had raised an arguable case for making orders to set aside the tribunal’s decision and remit his application for further consideration. His Honour noted that the applicant had been given the opportunity to receive free legal advice, but had declined that opportunity. However, he had filed an amended application. His Honour noted that the grounds of the original application did not disclose any arguable case.
The trial judge reviewed those asserted grounds, finding that none of them revealed any arguable jurisdictional error. He then turned to the amended application which, similarly he found, after reviewing each of the claims in it, did not reveal any matter raising an arguable case. I agree with his Honour’s conclusions for the reasons that he gave. He noted that the applicant had attended before the court on that occasion but had no submissions to make to his Honour at all. His Honour dismissed the application.
THE APPLICATION FOR LEAVE TO APPEAL
The application for leave to appeal was supported by an affidavit and a draft notice of appeal. The draft notice of appeal asserted two grounds. First, that the trial judge had failed to find an error of law, or jurisdictional error, or that there had been a denial of procedural fairness and that he should have found that the applicant was entitled to relief under s 39B of the Judiciary Act 1903 (Cth). Secondly, it asserted that his Honour had dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
Neither of those grounds has any substance at all. They are self-evidently completely unparticularised and would be wholly insufficient to warrant the intervention of the Court. An applicant for leave to appeal must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and also that substantial injustice would result from a refusal of leave to appeal. There is nothing in the material before me to suggest that there is any reason to doubt the correctness of his Honour’s decision, or indeed, that of the tribunal.
In my opinion, the application has no substance and should be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 22 December 2008
The Applicant: No appearance Solicitor appearing for the First Respondent: Mr R Baird, Clayton Utz
Date of Hearing: 27 November 2008 Date of Judgment: 27 November 2008
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