SZLGJ v Minister for Immigration and Citizenship [2008] FCA 859

FEDERAL COURT OF AUSTRALIA

SZLGJ v Minister for Immigration and Citizenship [2008] FCA 859

SZLGJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 372 of 2008

GRAHAM J

20 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 372 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLGJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 20 MAY 2008

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the appeal be dismissed. 2. Orders that the appellant pay the costs of the respondent Minister fixed in the sum of $2,100. 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 372 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLGJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 20 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant was born in Chennai in India on 1 March 1980. On 26 July 2006 he secured an Indian passport. On 5 December 2006 he secured a visa that allowed him to enter Singapore. On 8 January 2007, according to the Refugee Review Tribunal ('the Tribunal'), he applied for an Australian visa. On 22 February 2007, he secured an Australian visa that allowed him to enter Australia on a temporary basis. On 2 March 2007 he arrived in Australia. On 12 March 2007 he applied for a Protection (Class XA) visa. His application was supported by a statutory declaration to which I will return. 2 On 28 March 2007 the Minister's delegate refused the appellant's application for a Protection (Class XA) visa. The appellant applied to the Tribunal for review of the Minister's delegate's decision on 18 April 2007. On 30 April 2007 he was invited to attend a hearing before the Tribunal on 20 June 2007 and he did so. On 22 June 2007 a letter was sent to the appellant under s 424A of the Migration Act 1958 (Cth) ('the Migration Act') inviting his comments on certain matters. On 16 July 2007 he provided a response to that letter which contained his comments. On 25 July 2007 the Tribunal reached the conclusion that the decision not to grant the applicant a Protection (Class XA) visa should be affirmed. That decision was handed down on 14 August 2007. 3 On 4 September 2007 the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal's decision. An Amended Application was filed on 5 December 2007 which came before Scarlett FM on 27 February 2008. His Honour ordered that the application be dismissed and that the appellant pay the respondent Minister's costs fixed in the sum of $3,400. On 18 March 2008, the appellant filed a Notice of Appeal in this Court, appealing from the decision of Scarlett FM of 27 February 2008. 4 The appellant, who is identified for the purposes of these proceedings as 'SZLGJ', has identified the signature appearing above the word 'appellant' on the Notice of Appeal filed 18 March 2008 as his signature. The appellant has informed the Court that he did not write the material appearing under the heading, 'Grounds' in the Notice of Appeal. A friend of his is said to have prepared the document for him. He says that if there is anything wrong with it, he apologises. He says that he does not know anything about particular legal issues. He says that his friend informed him that his case was similar to the case of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 ('Randhawa'), a relocation case, but the appellant knows nothing about that case or any principle flowing from it. 5 I have drawn the appellant's attention to the fact that Randhawa was considered in detail by the High Court last year in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 ('SZATV') at [9]-[22]. The principle enunciated by Black CJ in Randhawa appears to have been confirmed by the High Court which relevantly, in SZATV, referred to observations of Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 where amongst other things his Lordship said at [7]: '7 … a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.' 6 The relocation issue was further considered by the High Court in SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660 in which a decision was handed down on the same day as SZATV. I would draw attention in particular to the observations of Gummow, Heydon and Crennan JJ at [14]-[15]. At [14] their Honours said, as a general proposition: '14 … it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.' 7 The appellant has indicated that the person whom he described as a friend was not really a friend at all but a person who made contact with him by telephone. He charged him $500, apparently for preparing the Notice of Appeal which is of little, if any, assistance to the Court, especially in circumstances where the appellant has no comprehension as to what it is all about. 8 When asked to explain his grounds of appeal, the appellant said that he didn't understand the law, that he had been 'truly adversely affected' in his country and that is why he sought refuge here. He says that he would appeal to the Court on humanitarian grounds to let him stay in this country. He knows nothing about the intricacies of the law. He says that he was previously unable to obtain documents which he could present to the Refugee Review Tribunal or the Federal Magistrates Court but that he would now be able to produce documents that would show that he has been 'truly affected' and asked for a period of two months within which to produce documents and state his case. He said that his case was a plea for mercy and that he needed to establish that he was 'truly affected'. He suggested that an injustice would be done if the case was decided without seeing the documents that he apparently had available to him now. 9 Little more needs to be said to justify the appeal being dismissed. It is clear that what the appellant seeks is a merits review of the decision of the Tribunal and that is simply not available to him in this Court or, indeed, in the Federal Magistrates Court from which this appeal has been brought. 10 It is appropriate to turn to the statutory declaration that was provided to the Minister with the application for the Protection (Class XA) visa. The statutory declaration, in summary, tells his story. 11 In about 2000, the appellant was working in a shop as a retail salesman. He met a young and beautiful sales girl. She was a Hindu. He was a Muslim. As he informed the Court earlier today, the young lady's father did not like the appellant associating with his daughter. He says that because of his pursuit of his daughter, he ended up being physically maltreated. She was sent away to another location but apparently they made contact with one another again, to the dislike of the girl's family. 12 Amongst other things, the appellant said in his statutory declaration: 'On 13th Feb 2007, there was a group of rowdies attacked my uncle Abbas, and put fire on his properties. I ran away to save my life. 2 other Muslims were brutally attacked and they were also in Hospital. When the Police came to control the atrocity, they attacked the Police also. I hide in several places and my father arranged this Visa for me to escape to Australia. I arrived Sydney, Australia, on 2nd March 2007. Hence I seek Asylum in Australia.' (Emphasis added) 13 In the Tribunal's 'FINDINGS AND REASONS' the following, amongst other things, appeared: 'The Tribunal did not find the applicant to be a credible witness. Department records indicate the applicant applied for a subclass 420 visa to come to Australia on 8 January 2007; that is before the alleged 13 February 2007 incident … This leads the Tribunal to find the applicant's visa to travel to Australia was arranged before the date on which the applicant stated his uncle and others were attacked and before the applicant went into hiding … In his written submission received on 16 July 2007, the applicant sought to explain this by claiming he had 'anticipated' the February 13 (violent) incident would occur. The Tribunal considers that this explanation has been invented only after the Departmental records were given to the applicant. … … the Tribunal is not satisfied the alleged bus attack in April 2006 occurred. … the Tribunal is satisfied the applicant is not a witness of truth. … … … the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons relating to [his relationship with the Hindu girl]. Furthermore, assuming the applicant is in fact fearful of Veena's father, the Tribunal also considers that the harm feared is sufficiently localised … and is satisfied the applicant could remain in his town or relocate elsewhere within India. …the Tribunal does not accept that they [Veena's father or family or associates] would pursue him in his home town, or that they would want to or be able to locate him anywhere in India. … Accordingly, the Tribunal does not accept the applicant has a well founded fear of persecution for reasons of race, religion, nationality or because of his membership of a particular social group or political opinion if he returns to India in the foreseeable future.' 14 The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively 'the Refugees Convention'). 15 Given the findings of the Tribunal in respect of the credibility of the appellant, there would not appear, in the circumstances of this case, to be any basis for a finding of jurisdictional error on the Tribunal's behalf. Whilst it does not appear to have been the subject of any detailed consideration before the Tribunal or in the Federal Magistrates Court, I note that in the Minister's delegate's reasons for decision the following appeared: 'There is no evidence to indicate that the applicant is at risk of harm for a Convention reason. The applicant's fears are essentially related to matters that can be best described as criminal in nature and not related to any of the reasons enumerated in the Refugees Convention.' 16 I would respectfully agree on the facts as referred to in the Tribunal's decision with the comments made by the Minister's delegate. It could not be said on those facts that owing to well-founded fear of being persecuted for reason of religion, the appellant was outside the country of his nationality and unable to or owing to such fear unwilling to avail himself of the protection of that country within the meaning of Article 1(2) of the Refugees Convention (see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [61]-[62] and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). In my opinion, the appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.