SZLQZ v Minister for Immigration & Citizenship [2008] FCA 717

FEDERAL COURT OF AUSTRALIA

SZLQZ v Minister for Immigration & Citizenship [2008] FCA 717

MIGRATION – Federal Magistrates Court – interlocutory decision – application for leave to appeal – application dismissed – decision not attendant with sufficient doubt

Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Magistrates Court Rules 2001 (Cth), r 44.12 Federal Court Rules 1979 (Cth), O 52, r 5(2) Harrington v Rich [2008] FCAFC 61 followed SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 followed SZLQZ v Minister for Immigration & Citizenship [2008] FMCA 194 cited SZLQZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 335 of 2008

FLICK J

20 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 335 of 2008

BETWEEN: SZLQZ

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FLICK J DATE OF ORDER: 20 MAY 2008

WHERE MADE: SYDNEY

THE ORDERS OF THE COURT ARE:

1. The Application for Leave to Appeal be dismissed. 2. The Applicant to pay the costs of the First Respondent fixed in the sum of $645. 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 335 of 2008

BETWEEN: SZLQZ

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FLICK J

DATE: 20 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Applicant claims to be a citizen of India. 2 He arrived in Australia on 11 May 2007 and applied for a Protection (Class XA) Visa on 14 May 2007. A delegate of the Minister refused to grant that visa and an application for review was lodged with the Refugee Review Tribunal on 25 June 2007. 3 The Tribunal affirmed the decision of the delegate by way of a decision signed on 8 October 2007. 4 The Federal Magistrates Court dismissed an application to review the decision of the Tribunal on 20 February 2008: SZLQZ v Minister for Immigration & Citizenship [2008] FMCA 194. The Federal Magistrate dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 5 Rule 44 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. As rule 44.12(2) expressly provides, the dismissal of an application under rule 44.12(1)(a) is an interlocutory decision. 6 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The Applicant appeared before this Court this afternoon unrepresented, although he did have the assistance of an interpreter. 7 The Application for Leave to Appeal was filed in this Court on 11 March 2008. The draft Notice of Appeal sets forth the Grounds of Appeal, should leave be granted, as follows (without alteration): 1. Juris-dictional error 2. Breached of procedures 3. Denial of natural Justice There is no further specification as to the manner in which any of these grounds is to be developed other than that set forth in a written Outline of Submissions as filed by the Applicant on 19 May 2008. 8 The Application sought an order dispensing with compliance with Order 52, r 5(2) of the Federal Court Rules. However,in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that "there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA". His Honour further concluded that "there is an implied time limit of 21 days after the date of the interlocutory judgment". 9 No question arises in the present Application as to whether it was filed within time; the question is whether leave should be granted or refused. Considerations relevant to the exercise of that discretion are: (i) whether in all the circumstances, the judgment of the primary judge is attended by sufficient doubt as to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ. 10 In the present proceedings it is considered that leave to appeal should be refused. The judgment of the Federal Magistrates Court is not attendant with sufficient doubt to warrant it being reconsidered. Relevant to that conclusion is a review of the reasons for decision of both the Refugee Review Tribunal and the Federal Magistrates Court. 11 The reasons for decision of the Tribunal recount the claims being made, the findings of fact which were made and the reasons for decision. Those findings include findings made adversely to the now Applicant — but findings which were open to the Tribunal. It thus concluded, for example: As is set out herein, the Tribunal is satisfied the applicant has sought to at least embellish if not entirely fabricate material parts of his case. Therefore, even though the Tribunal accepts the above claim (to have been abducted) is possible, the Tribunal does not intend to give the applicant the benefit of the doubt and thus does not accept this claim. … … the Tribunal is not satisfied the applicant is being pursued by the Indian authorities; for the reasons he claimed or at all. The Tribunal therefore does not accept the applicant had to hide in Bangalow. … … … the Tribunal is satisfied the applicant could safely relocate in India and by doing avoid a well founded fear of persecution for a Convention reason. 12 The written submissions as filed by the Applicant include contentions that: (i) there has been a breach of s 424A of the Migration Act 1958 (Cth); (ii) there has been a failure on the part of the Tribunal to "address in their finding of facts that how I could relocate elsewhere in India without continuing to face a risk of persecution based on my Convention claims"; and (iii) there has been a failure to allow the Applicant an opportunity to comment on "adverse information". No such error is apparent on the face of the Tribunal's decision and — more importantly — there is no manifest appellable error in the reasons provided by the Federal Magistrates Court. 13 The Federal Magistrates Court relevantly concluded in part as follows: [5] There is no substance to any of the grounds raised by the applicant. The Tribunal decision turns on its adverse findings based upon the applicant's own evidence. The Tribunal may also have had regard to some country information about Hindu religious festivals. Neither class of information required disclosure pursuant to s.424A. The applicant claims he should have been provided with independent information about adequate State protection, but that does not appear to have played a part in the Tribunal's reasoning, except possibly in relation to the secondary finding on relocation. That conclusion, it is considered, is not attendant with sufficient doubt to warrant the granting of leave to appeal. Indeed, it would appear that the conclusion is correct. 14 The finding as to "relocation", it should further be noted, was not material to the conclusion reached. The Tribunal thus concluded that "all of the claims" of the Applicant to refugee protection should be rejected. It had previously found: For the reasons that follow, the Tribunal is satisfied the applicant has sought to embellish if not entirely fabricate material parts of his case. The impact this has had on the Tribunals findings and reasons is set out below. However, to the extent I have not expressly rejected the applicant's material claims below, given I am sufficiently satisfied the applicant has sought to at least embellish (if not entirely fabricate) his material claims, I now reject all his claims to invoke refugee protection obligations in Australia as false. There was, accordingly, no necessity for the Tribunal to go on to consider such difficulties as may have been encountered if relocation had been an issue in need of resolution. No error, however, is exposed by the Tribunal proceeding to do so. 15 The decision of the Tribunal does not expose any jurisdictional error, denial of natural justice or other failure to comply with "procedures". Nor is any appellable error evident from the reasons for decision of the Federal Magistrates Court dismissing the application before that Court. 16 Leave to appeal is thus refused. 17 An Affidavit as filed by the Respondent Minister sought a fixed costs order in the sum of $645. There is no reason to question that quantification.