SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370

FEDERAL COURT OF AUSTRALIA

SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370 SZALV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD699 OF 2004 BENNETT J 14 OCTOBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD699 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZALV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 14 OCTOBER 2004

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. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD699 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZALV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 14 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Driver FM made on 23 April 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 11 March 2003 and handed down on 3 April 2003. The Tribunal affirmed a decision of the delegate of the Minister refusing to grant the appellant a protection (Class XA) visa. In his amended notice of appeal the appellant seeks a writ of certiorari to quash the Tribunal's decision, a writ of mandamus to compel the Tribunal to consider his application according to law, a declaration to set aside the judgment of the Federal Magistrate and costs. 2 In his amended notice of appeal, the appellant claims that Driver FM erred in failing to find that the Tribunal's decision was affected by jurisdictional error and that the Tribunal 'erred in law amounting to jurisdictional error in determining whether the harm suffered by the applicant amounted to persecution'. 3 The claims are particularised as follows: 1. 'The Tribunal fail to address the claim that the applicant was persecuted because he is a Muslim businessperson. In 1995 during the Elephant God festival his three Business cites are ransacked by Hindu fundamentalist in INDIA' 2. I am the target of Hindu National Front. The Tribunal did not accept my claim without any reasons and information. 3. My genuine claim did not investigate by the RRT members. 4. RRT made decision with the bad faith.' 4 Before the Tribunal the appellant, a citizen of India of Muslim faith, claimed that he had a well founded fear of persecution on the ground of religion. The relevant findings of the Tribunal as to the facts of this case are set out in the respondent's submissions: 'The Tribunal found that the appellant's evidence was not plausible, in particular his claim at the hearing that his two and half year old child died of fright when an enemy pulled a knife on the family. He was not able to explain any religious motives behind his business rival's alleged actions. The Tribunal concluded that the business difficulties lacked detail and were unclear, and in any event did not establish persecution on the ground of religion. Moreover, it would be reasonable for the appellant to relocated within India. The tribunal concluded that the appellant was not a person to whom Australia had protection obligations.' The appellant's claims and the Tribunal's findings in relation to the claims are also set out in the reasons of Driver FM. 5 In particular, the Tribunal found that the appellant was not a credible witness saying: '…at his hearing he contradicted his earlier claims on every point put to him.' The appellant failed to make the necessary connection between the claimed persecution and his Islamic faith. The Tribunal said, 'these difficulties, if indeed they existed, do not appear to be Convention related.' The appellant was not able to explain satisfactorily how the competition between his firm and Mangalam had any religious overtones. The Tribunal did not accept that the appellant's ability to give evidence was impeded by the claimed recent death of his child who, the appellant claimed, had been killed by business opponents. The Tribunal did not accept that a child under three years could have died of shock in the circumstances described. The Tribunal identified a number of contradictions in the appellant's claims and supported its reasons with country information which indicated that even if the appellant's account of his persecution were truthful he would have recourse to the legal system and that he could have relocated. 6 In Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at [67], McHugh J said of Tribunal findings as to credibility: `A finding on credibility is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.´ 7 While the Tribunal's reasons in the present case were short, reasons were given as to why the appellant was not believed. Federal Magistrate Driver rejected the appellant's submissions that the Tribunal decision was affected by bad faith, bias, jurisdictional error and the absence of procedural fairness. Federal Magistrate Driver found that 'there was no evidence in the present case that the Tribunal member failed to make an honest and genuine attempt to carry out the review function'. 8 The appellant sought to rely on the principle in Muin v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 207 ('Muin') relating to procedural fairness but Driver FM found that he failed to 'bring the case within the special circumstances of Muin'. There was no evidence of an actual state of mind of the Tribunal member which would constitute bias, nor was there any evidence of error of law constituting jurisdictional error. Federal Magistrate Driver found that the Tribunal made no error in reaching its factual findings and dealt with each integer of the appellant's claims. 9 Before me, the appellant has appeared in person assisted by an interpreter. At the hearing, he handed up a document entitled "Written Argument by Applicant". I will deal with that written argument before dealing with the matters raised in the written notice of appeal. The written argument sets out a number of grounds and I have asked the appellant to explain the content of each ground to the extent that he can. He informed me that the written argument had been written by a student friend.