SZJTW v Minister for Immigration and Citizenship [2007] FCA 1166

FEDERAL COURT OF AUSTRALIA

SZJTW v Minister for Immigration and Citizenship [2007] FCA 1166 SZJTW AND SZJTX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 550 OF 2007

LINDGREN J

1 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 550 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJTW

First Applicant

SZJTX

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 1 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicants pay the first respondent's costs of the application. 3. The costs referred to in Order 2 above be fixed at the sum of $1,100.00 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 NSD 550 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJTW

First Applicant

SZJTX

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 1 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicants are husband and wife. They apply for leave to appeal from a judgment of the Federal Magistrates Court of Australia: SZJTW & Anor v Minister for Immigration & Anor [2007] FMCA 481. That Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal). The Federal Magistrates Court's order was made on 20 March 2007 pursuant to r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) on the ground that the application did not raise an arguable case for the relief claimed. The order of dismissal was interlocutory: see r 44.12(2). Accordingly, the applicants need leave to appeal: see ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth). 2 The Tribunal's decision was signed on 2 November 2006 and handed down on 16 November 2006. The Tribunal affirmed a decision of a delegate of the first respondent (the Delegate and the Minister respectively) not to grant a Protection (Class XA) visa. 3 The applicants are citizens of India who arrived in Australia on 25 May 2006. They lodged their application for the visa on 11 July 2006. The husband made substantive claims for protection and I will refer to him as the applicant. The applicant claimed to be an active member of the BJP (Bhartiya Janta Party) in the state of Gujarat. He claimed that he came into conflict with workers for the Congress Party in his region and feared persecution for that reason. 4 On 6 September 2006, the Delegate refused to issue a Protection visa and on 20 September 2006 the applicant applied to the Tribunal for review of the Delegate's decision. The applicant attended a hearing before the Tribunal on 1 November 2006. 5 The Tribunal recounted the applicant's claims and set out, in full, the typed and signed statement which had accompanied his visa application. The Tribunal referred to the fact that at the hearing, the applicant had made certain corrections in respect of matters in the statement. The Tribunal accepted his explanation that he had "told his story to a friend who had prepared the statement, but who had made mistakes in it". 6 While the Tribunal accepted the applicant's explanation for the discrepancies, it was not persuaded that the applicant faced persecution in India. In summary, the Tribunal concluded that the applicant's role in politics had been of a very minor nature. The applicant told the Tribunal that during a procession in 2005, he had made speeches which angered local Muslims but when asked why he would be the one giving the speeches, the applicant apparently had no explanation. 7 The applicant's party (the BJP) dominates the Gujarat State government and Hindus are in the overwhelming majority in the State (almost 90 per cent). For these reasons, the Tribunal did not accept that it was credible that the applicant should be pursued by opposition supporters with a view to doing him harm. 8 In his statement accompanying the visa application, the applicant referred to two particular incidents in which he was attacked. 9 On the first of these occasions, he was on his bike riding home from his office late at night in a particular area when he was attacked. He said he did not recognise who his attackers were as it was a dark night and his attackers ran away. He said that family members came and took him to the hospital, and that he complained to the police, but since he did not know who had attacked him, it was difficult for the police to trace the people. 10 The applicant said that about six months later, when he and his wife were going home from a friend's birthday party at night, someone threw "an acid bulb" on them but due to the speed of their bike, they avoided harm although some acid came onto his wife's sari. 11 The applicant apparently asked that these two incidents be accepted as evidence of political persecution but in the absence of the identity of the attackers, the Tribunal characterised them as criminal rather than political actions. 12 In summary, the Tribunal regarded the applicant's claims as imprecise, and, because of the applicant's low political profile, lacking in plausibility. It described his attribution of the two attacks to his political activity as "pure speculation". 13 The Federal Magistrate noted that there were two grounds to the application before that Court: the first was a failure by the Tribunal to follow proper procedure, denial of natural justice and jurisdictional error, while the second was the Tribunal's failure to comply with s 424A of the Migration Act 1958 (Cth). The Federal Magistrate found no substance in either ground for reasons his Honour gave. 14 In support of the applicant's present application for leave to appeal, a draft notice of appeal has been filed as well as an affidavit in support of the application. However, in substance, the draft notice of appeal repeats the complaints made in the Federal Magistrates Court. In relation to the submission that there was non-compliance with s 424A, I note in passing that even if the Tribunal had relied upon inconsistency between the information in the application for a Protection visa and the oral evidence given by the applicant before the Tribunal (as noted above, the Tribunal did not rely upon this), this would not enliven any obligation under s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. 15 I asked the applicant if he wished to say anything in support of his application for leave to appeal. He replied that his life would be in danger if he were to return to India and that that is why he had applied for the Protection visa. He said he had lots of problems back in his country. He said "Just give me permission to lodge my application [sic – appeal]". I explained to him that it was not open to the Federal Magistrates Court and is not open to this Court to review the merits of the Tribunal's decision. 16 I agree with the submission of the solicitor for the first respondent that there is neither legal error apparent in the reasons for judgment of the Federal Magistrate nor any jurisdictional error apparent in the Tribunal's decision. 17 A appeal would have no prospect of success. The decision of the Federal Magistrates Court is not attended with sufficient doubt to warrant appellate reconsideration of it: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Leave to appeal should be refused with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.