SZNSF v Minister for Immigration and Citizenship
[2010] FCA 266
•3 March 2010
FEDERAL COURT OF AUSTRALIA
SZNSF v Minister for Immigration and Citizenship [2010] FCA 266
Citation: SZNSF v Minister for Immigration and Citizenship [2010] FCA 266 Appeal from: SZNSF & Ors v Minister for Immigration & Anor [2009] FMCA 1208 Parties: SZNSF, SZNSG and SZNSH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1425 of 2009 Judge: NICHOLAS J Date of judgment: 3 March 2010 Legislation: Migration Act 1958 (Cth) ss 36, 424A, 427, 476 Cases cited: SZNSF & Ors v Minister for Immigration & Anor [2009] FMCA 1208 affirmed Date of last submissions: 3 March 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 The First Appellant appeared in person and on behalf of the Second and Third Appellants Solicitor for the First Respondent: Clayton Utz Counsel for the First Respondent: MP Cleary
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1425 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNSF
First AppellantSZNSG
Second AppellantSZNSH
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
3 MARCH 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the amount of $4000.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1425 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNSF
First AppellantSZNSG
Second AppellantSZNSH
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
3 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
BACKGROUND
This is an appeal from a decision of Smith FM delivered on 24 November 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 26 May 2009 (see SZNSF & Ors v Minister for Immigration & Anor [2009] FMCA 1208). The decision of the Tribunal affirmed an earlier decision of a delegate of the first respondent to refuse to grant Protection (Class XA) visas to the appellants.
The appellants are a husband, wife and child who are citizens of India. They arrived in Australia on 15 August 2008 on visitors visas. The appellants applied for protection visas on 26 September 2008 under s 36 of the Migration Act 1958 (Cth) (the Act). The first appellant made specific claims for protection under the Act, and the second and third appellants’ claims are based on their membership to the first appellant’s family unit.
On 1 December 2008 the first appellant attended an interview at the Department of Immigration and Citizenship (the Department) with the aid of an interpreter. On 2 December 2008 the delegate refused to grant the appellants protection visas. The delegate found that the first appellant did not have a genuine fear of harm and there was no real chance of persecution. On 12 December 2008 the appellant sought review of the delegate’s decision in the Tribunal.
The first appellant appeared at the hearing today accompanied by his wife and child. He had the assistance of an interpreter. No written submissions were filed by him but some brief oral submissions were put to me this morning which were directed to the issues of, first, difficulties encountered in interpretation before the Tribunal and, second, the absence of any migration agent or a lawyer to represent him at the hearing before it. I’ll return to both those issues shortly.
The first appellant claims to fear persecution in India arising from his former employment as a driver for Baba Ram Rahim, the leader of a religious organisation known as Dera Sacha Sauda. In summary, the first appellant claims that gunshots were fired at the leader’s car in March 2008 while the first appellant was driving, which led the first appellant to resign from his position. Subsequently, the first appellant claims he was abducted and tortured by a follower or followers of Baba Ram Rahim, when he escaped and sought protection from the police to no avail.
THE TRIBUNAL
On 3 February 2009 the appellant’s migration agent sent a fax to the Tribunal attaching the appellant’s response to the hearing invitation. In that fax, the migration agent requested the hearing be adjourned for a month due to problems the agent was experiencing with his eyesight. On 4 February 2009 the migration agent sent a further fax to the Tribunal requesting an adjournment of the hearing. On 6 February 2009 the Tribunal sent a letter to the appellants refusing an adjournment of the hearing.
On 18 February 2009 the first appellant and the second appellant attended a hearing before the Tribunal where each gave oral evidence with the assistance of an interpreter. On 16 April 2009 the Tribunal sent a letter under s 424A of the Act to the appellants. The appellants (through their migration agent) responded to that letter by fax dated 21 May 2009.
On 26 May 2009 the Tribunal affirmed the delegate’s decision.
In coming to its decision the Tribunal reviewed the relevant provisions and authorities in terms that have not been the subject of criticism and which appear to me to be unexceptional. It set out in detail the appellants’ oral and written claims and evidence given by the first and second appellants at the hearing.
The Tribunal found that the first appellant was not a person whom Australia owed protection obligations under the Act and the refugee convention on the basis that the appellant was not a credible witness and that he had fabricated his claims. That finding was the product of a detailed analysis by the Tribunal of aspects of the first appellant’s evidence to the Tribunal as well as previous statements made by him. That analysis, according to the Tribunal, disclosed that there were numerous inconsistencies in the first appellant’s account of events, one of which the Tribunal characterised as being of critical significance. That particular matter related to the date upon which the attack was said to have occurred on Baba Ram Rahim and the date upon which the first appellant claimed to have been kidnapped and tortured. Those inconsistencies were said to be of considerable significance given the date upon which the first appellant renewed his passport.
There were various other inconsistencies referred to by the Tribunal, although it is fair to say that that the inconsistency already identified appears to have been most influential in leading it to conclude that the first appellant was a witness lacking credibility. Ultimately, the Tribunal found the first appellant did not have a well-founded fear of Convention-related persecution. It rejected the appellant’s application for review and affirmed the delegate’s decision.
The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court under s 476 of the Act.
In their application filed in the Federal Magistrates Court dated 29 June 2009 the appellants relied in substance upon three grounds of judicial review. In his decision, the federal magistrate set out the background to the application and then addressed each of the arguments advanced by the appellants in support of the application for review. His Honour rejected each of these arguments and concluded that the appellants had not established jurisdictional error on the part of the Tribunal. His Honour dismissed the appellants’ application.
THE GROUNDS OF APPEAL
In this Court, the appellants’ notice of appeal consists of two grounds. They are as follows:
1.His Honour did not properly consider the translation error made in the hearing.
2.His Honour erred by not properly considering the procedural error made by the Tribunal by refusing to call the migration agent when requested.
As I have already mentioned, no written submissions were filed in support of the appeal by the appellants. But it is apparent from the notice of appeal and the oral submissions made to me this morning that there are two matters upon which the appellants rely which I will now consider.
DISPOSITION
First, the first appellant reiterated before me arguments similar to those put to the federal magistrate relating to translation difficulties. The federal magistrate rejected these arguments on the basis that they were not supported by evidence. I agree with his Honour that this ground of review could not succeed having regard to the material, or lack of material, before the Court. I am satisfied that his Honour has not committed any appealable error in relation to his rejection of this ground of review.
The second matter raised in the notice of appeal in this court and touched on again in the oral submissions concerned the alleged failure of the Tribunal to permit the appellants’ migration agent to participate in the Tribunal hearing. This complaint was also dealt with by his Honour fully and in terms with which I agree.
His Honour found that the Tribunal had not given any undertaking to the appellant to allow the migration agent to participate by telephone in the Tribunal hearing and that, in any event, no such request had been made by the appellants that the migration agent be permitted to do so when they gave their oral evidence on 18 February 2009. His Honour correctly concluded that whilst s 427 of the Act does not exclude the power of the Tribunal to permit a migration agent to be present during a hearing, the Act does not give rise to any expectation that the Tribunal will adjourn the hearing due to the unavailability of an applicant’s representative.
His Honour found that there was no persuasive evidence that the Tribunal ever represented to the appellants that the Tribunal would accommodate the agent’s availability or allow him to attend by phone. His Honour went on to find that there was no reason to doubt the factual basis upon which the Tribunal exercised its discretion under the Act in relation to the conduct of the hearing on 18 February 2009. I cannot discern any error in his Honour’s analysis and I agree with it.
I therefore dismiss the appeal with costs.
The first respondent applied for an order that the costs be fixed in an amount. In support of that application, the first respondent relies upon an affidavit of David Alexander Hughes sworn 3 March 2010 which has been filed and read. A copy of the affidavit was also made available to the first appellant who took the opportunity to read it with the assistance of the interpreter who is here today.
I order the costs awarded to the first respondent be fixed in the amount of $4000.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 23 March 2010