SZODP v Minister for Immigration and Citizenship
[2010] FCA 870
•9 August 2010
FEDERAL COURT OF AUSTRALIA
SZODP v Minister for Immigration and Citizenship
[2010] FCA 870
Citation: SZODP v Minister for Immigration and Citizenship [2010] FCA 870 Appeal from: SZODP v Minister for Immigration [2010] FMCA 356 Parties: SZODP and SZODQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 620 of 2010 Judge: RARES J Date of judgment: 9 August 2010 Corrigendum: 17 August 2010 Date of hearing: 9 August 2010 Place: Sydney (via video link to Darwin) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 First and Second Appellants: Appeared in person Solicitor for the First Respondent: R Baird, Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 620 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZODP
First AppellantSZODQ
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
9 AUGUST 2010
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO DARWIN)
CORRIGENDUM
1.This judgment was originally published with the incorrect appellant pseudonym of “SZDOP” in the medium neutral citation and citation field. This has now been corrected to show the appellant’s pseudonym as “SZODP”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 17 August 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 620 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZODP
First AppellantSZODQ
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
9 AUGUST 2010
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO DARWIN)
THE COURT ORDERS THAT:
1.Appeal be dismissed.
2.The appellants pay the first respondent’s 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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 620 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZODP
First AppellantSZODQ
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
9 AUGUST 2010
PLACE:
SYDNEY (VIA VIDEO LINK TO DARWIN)
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from a decision of the Federal Magistrates Court refusing the appellants’ application for constitutional writ relief: SZODP v Minister for Immigration [2010] FMCA 356. The appellants are husband and wife and citizens of the Republic of India. They arrived in Australia in July 2010 and applied for protection visas based on claims made by the husband. A delegate of the Minister refused to grant the visas on 7 September 2009. They applied to the Refugee Review Tribunal for a review of that decision. The tribunal had a hearing at which the husband appeared and gave evidence. On 12 January 2010 the tribunal affirmed the decisions not to grant protection visas.
THE HUSBAND’S ORIGINAL CLAIMS
In their visa application, the husband claimed to have been born in Gujarat and brought up in Mumbai. He claimed to have been a business man running a garments business in Mumbai. He claimed to have been a Hindu and a supporter of the Hindu nationalist party, the BJP, paying regular donations to that party and introducing others to it. He claimed that in Mumbai it was difficult to continue business without political party support and that, being a Hindu and BJP party member, he had been targeted by Muslim mafia on a number of occasions. He claimed that these criminals were used by the Congress Party and that they had asked him to make donations, but he had resisted this because he told them his business had been running at a loss and was suffering financial hardship. He claimed that eventually the criminals came to know that he had originated from Gujarat, as had his wife, and that they obtained information from a “Muslim guy from Gujarat who had known my wife in school and used to like her.” The husband claimed that since he married in Gujarat and moved with his wife to Mumbai, this person wanted to get revenge on him.
The husband claimed that criminals had come to his business address while he was away in Kolkata for business purposes and threatened his manager. These people, he claimed, asked for his home address and about his family members, including his wife and, when the manager refused to tell them the husband’s address, they threatened him with a gun causing him to reveal the information under duress. He claimed that while these people were threatening the manager they telephoned another group who then went to his house while only the caretaker was at home. He claimed that those people ransacked his house, stealing valuable items. He claimed that the ransackers then told their colleagues, who were still at his business, about what they had done. He claimed then that the latter blindfolded the manager, who fainted and they left. The husband claimed that when he heard about this incident he decided to go back to Mumbai after first informing the police who refused to do anything unless the manager made a statement. As the manager was frightened and refused to make a statement, the husband claimed nothing had been done. He claimed that after having been terrified by this ordeal, his parents decided to stop running the business and move to another country. He asserted that he would continue to be threatened by this “Muslim guy” until he had his revenge on the husband and wife. He sought protection in Australia from being killed by Muslim thugs linked to the Congress Party.
THE PROCEEDINGS BEFORE THE DELEGATE
The delegate interviewed the husband by telephone in the course of arriving at his decision. The delegate accepted that the husband’s business had been attacked by criminals while he was away on business. During the interview the husband said he was not a member of the BJP and that, apart from giving donations to that party, the delegate found that the husband was unable to explain any other activities in which he had supported the BJP, despite his claim in his application for a protection visa that he had introduced people to that party. The husband identified for the delegate the source of the revenge threat as a person called “Iqbal” but was unable to provide that person’s full name despite his claim that Iqbal had targeted him and had known his wife at school.
The delegate was not satisfied that Iqbal had been involved in the claimed attack on the husband’s business and home and concluded that it was more likely that that incident had been of a purely criminal nature. The delegate found that during the interview the husband had elaborated his claims by making a new allegation that he had fled to set up a garment business in Ahmedabad, in the State of Gujarat, in November 2008, after the incident described in the protection visa application. He also claimed to the delegate that, in December 2008, Muslim mafia had been responsible for burning his truck and stealing his goods from it. The delegate put to the husband that in his application he had said he had conducted the business from January 2002 till April 2009 and had resided in Mumbai from May 1999 till May 2009. The husband acknowledged to the delegate that he had not included the second incident in his original application, but maintained that he had moved from Mumbai to Ahmedabad and that the second incident had occurred. But the delegate was not satisfied that this had happened.
The delegate found that the husband had not left India until 29 May 2009 despite claiming the attack on his home and business in Mumbai had occurred on 10 June 2008. The delegate also found that despite having been issued a passport in December 2007, the husband did not try to leave even until about five months after the second claimed incident in December 2008. The delegate found that the husband was a Hindu and that over 80% of the population of India are Hindu. The delegate also found that the husband could have reasonably relocated to another part of India, if he had wanted to, to avoid persecution. Accordingly, the delegation rejected the application.
THE TRIBUNAL’S DECISION
The tribunal noted that the husband had told it that he was unable to relocate to another area in India for financial reasons. It found the husband to be an unimpressive witness and that his evidence at the hearing about key aspects of his claims had been vague and lacking in detail as well as being inconsistent with claims in his protection visa application. The tribunal found that despite the husband’s claims of having been harassed by the person called Iqbal, he had never met Iqbal, did not know his name, where he lived and had not been visited personally, over a two‑year period, by this person who allegedly was threatening him. The tribunal did not find it credible that if Iqbal had all the information about where the husband and wife lived, where their businesses were, and had the money and connections to find him, he would not have tried to visit the husband at his home. The tribunal found that the husband had told it that he had a police report for the June 2008 incident, but had not put this before it. The tribunal found that, in any event, the existence of that report was inconsistent with his statement in the protection visa application that the police would not investigate the matter until the manager provided a statement or he had bribed the police.
The tribunal found that there were inconsistencies in the husband’s various versions of events concerning his moving from Mumbai to Ahmedabad, and his failure initially to include in his protection visa application the claims about the truck being burnt in December 2008. The tribunal did not accept the husband’s explanation that his lawyer had lodged the protection visa application at the last minute and that he had not had a proper opportunity to check it. It had found that he had an ability to read and understand English and would have noticed the omission from the protection visa application of the incident concerning the truck, had it actually occurred. The tribunal did not accept the husband’s explanation of the delays between the first alleged incident, his moving to Ahmedabad, the second alleged incident there and the attempt to come to Australia. It also did not accept that the husband was a BJP Party member, was actively involved in that party or had given money to Hindu extremists. The tribunal acknowledged that a particular inconsistency or omission on its own may not be determinative. But it had regard to the cumulative effect of the husband’s evidence, inconsistencies and deficiencies in concluding that his evidence was not credible.
The tribunal did not accept that the husband was telling the truth about what had happened to him in India and it did not accept his claims. It did not accept that he had been threatened by Iqbal or the Muslim mafia or had suffered the criminal activities that he claimed. The tribunal was not satisfied there was a real chance that the husband would face persecution in India because of his actual or imputed political opinion or for any other Convention ground now, then, or in the reasonably foreseeable future. Accordingly, the tribunal affirmed the decision of the delegate.
THE PROCEEDINGS BEFORE THE TRIAL JUDGE
The initial grounds of the appellants’ application to the Federal Magistrates Court were in a boilerplate and unhelpful form. They asserted that the tribunal:
·had failed to put to the appellant information under s 424A of the Migration Act 1958 (Cth);
·had exceeded or constructively failed to exercise its jurisdiction, denied him procedural fairness and had not investigated his claims in accordance with the Act;
·had asked irrelevant questions at the hearing, had ignored his political background and had caused his life to be endangered by arriving at erroneous findings.
In their amended application, the appellants contended that the tribunal:
·had to write to the husband under s 424A before it decided the review;
·had failed to investigate his claims of persecution in India and was therefore affected by actual bias; and
·had no jurisdiction to make its decisions because it had not arrived at its reasonable satisfaction in accordance with the provisions of the Act.
The trial judge rejected all of these grounds. He found that on at least three occasions, the husband had been reminded to forward to the tribunal any information, documents or submissions he wanted it to consider, but had not done so. His Honour noted that when he invited the husband to relate the various grounds for seeking relief in the application to his own case, the husband had raised only one aspect of what had happened before the tribunal. The husband suggested to his Honour that the tribunal had erred by not allowing him more time to produce two information reports by the Indian police and medical evidence. His Honour found that the tribunal had not erred in not permitting that to happen. It had offered the husband a further opportunity to provide material and he, despite saying that he could, never did provide the tribunal with that material. His Honour said, and I agree, that on the evidence, the husband had been on clear notice, prior to the tribunal hearing, that the credibility of his whole history had been in question and that he had the right to present evidence to corroborate his claims to the tribunal. In those circumstances, the tribunal had no obligation to invite the husband or his wife to present more evidence after the hearing and there was no jurisdictional error in its failing to have given such an invitation.
His Honour held that the tribunal was under no obligation itself to make any further inquiries and its decision was not based on any information giving rise to any obligation of the tribunal that it had failed to discharge under s 424A of the Migration Act. He found, and I agree, that there was no unfairness in the procedures followed by the tribunal and it had not departed from the requirements of the Migration Act in the course of it arriving at its decision. His Honour said that that disposed of the first two grounds of the original application. He said that the third ground was extremely obscure and there was no evidence in support of it. I agree, for the reasons that his Honour gave. His Honour found, that these same issues were canvassed in the first two grounds of the amended application. As he said, there was no basis whatever for the assertion that the tribunal’s decision had been affected by actual bias. He said, and I agree, that the third ground in the amended application was meaningless.
THE APPEAL
The appellants’ notice of appeal to this court contained three grounds. They argued that his Honour:
·failed to find errors of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth);
·had dismissed the case without considering the legal and factual errors contained in the tribunal’s decision; and
·had failed to take into consideration that the tribunal’s decision was unjust and made without taking into account the full gravity of the appellant’s circumstances and consequences.
None of those grounds of appeal has any content or substance. They do not identify any error, let alone legally cognisable error, in the way in which his Honour dealt with the application below. Having examined the material in the appeal papers, including the tribunal’s and his Honour’s decisions with some care, I am satisfied that his Honour arrived at a correct result and that the appeal should be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 August 2010