SZNOG v Minister for Immigration and Citizenship [2009] FCA 1279

Second Respondent

JUDGE: BENNETT J

DATE: 3 NOVEMBER 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal against the judgment of Driver FM of 21 July 2009, SZNOG v Minister for Immigration and Citizenship [2009] FMCA 690, dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 8 April 2009 and sent to the applicant on 9 April 2009. The Tribunal had affirmed a decision of a delegate of the Minister who formed the view that the applicant was not a person to whom Australia has protection obligations under the Convention and accordingly refused to grant a protection visa on 15 December 2008. 2 The proceedings in the Federal Magistrates Court began with a show cause application filed on 4 May 2009. The dismissal of the application by the Federal Magistrates Court was interlocutory by reason of rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were refused. 3 The applicant is a citizen of India who arrived in Australia on 12 August 2008. He lodged an application for a protection visa with the Department of Immigration and Citizenship on 18 September 2008. The delegate refused the application on 15 December 2008. On 13 January 2009, the applicant applied to the Tribunal for a review of that decision. I will deal with the chronology that followed later in these reasons. 4 In his application for a protection visa, the applicant claimed that he was born in a moderate Muslim family. He claimed that in the wake of the demolition of the Babri Mosque in 1992 and in the wake of the inter-religious riots that followed, his own family's home was set alight. He claimed that his father was an active member of the local Muslim community whose business was ransacked by a Hindu group called the RSS. 5 The applicant claimed that he joined a group called the TMMK and was arrested by the police for attempting to hold a rally to ensure improved employment and living conditions for local Muslims. He claimed that he was interrogated and tortured. He claimed that he was thereafter targeted by police whenever there was a bombing and the Muslims were blamed for everything. 6 The Tribunal did not accept the applicant's claims concerning the asserted harm he suffered in India. As noted by the Federal Magistrate at [3]: The Tribunal formed the view that the applicant's case was overwhelmingly fabricated and was, to a great degree, improvised at the Tribunal hearing. 7 The Tribunal noted inconsistencies in the applicant's evidence and said that it found many of his responses to be vague and implausible. The Tribunal took into account inconsistencies arising within the body of the applicant's oral evidence at the hearing on 16 March 2009, on the basis of the discrepancy raised with him under s 424AA of the Migration Act 1958 (Cth) ('the Act') and on the basis of the vast difference between the claims made in his initial protection visa application and the claims made to the Tribunal in writing and orally (as noted in the Federal Magistrate's decision at [3]). 8 Before the Federal Magistrate, the applicant had claimed, in an amended application: · that the Tribunal had failed to comply with s 424A(1) of the Act; · that the Tribunal failed to give him an opportunity to be heard in respect of its finding that he was not a witness of truth; and · that the Tribunal failed to comply with section 424 of the Act. 9 Federal Magistrate Driver found that there was no arguable case of jurisdictional error which arose from the amended application or from his Honour's own reading of the material. His Honour therefore ordered that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules. 10 In his affidavit dated 7 August 2009 and filed with his application for leave to appeal from the decision of the Federal Magistrate, the applicant attached a draft notice of appeal. The grounds of appeal are: 1. The single Judge of the Federal Magistrates Court in his Honour's judgment delivered on 21 July 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903. 2. The learned Federal Magistrate dismissed the case without considering the legal and factual errors contained in the Refugee Review Tribunal. 11 The applicant appears before me in person assisted by an interpreter. The matter that he presses in his oral submissions is his assertion that the Tribunal failed to give him sufficient time to produce further documentation. In that regard I repeat some of the chronology of the applicant's application for a protection visa. 12 The application for the protection visa was made in September 2008. The decision of the delegate was made on 15 December 2008. The application to the Tribunal for review of that decision was made on 13 January 2009. By a letter dated 14 January 2009 and posted on 15 January 2009, the Tribunal invited the applicant to produce documents in relation to his application. On 17 February 2009, the Tribunal invited the applicant to attend a hearing. No documents were produced by the applicant prior to the hearing. At the hearing which took place on 16 March 2009, the only document produced by the applicant was his passport. 13 At the hearing, the Tribunal noted the inconsistency that it believed existed in the applicant's evidence and brought that inconsistency to the attention of the applicant. According to the Tribunal decision, the applicant sought time to produce further records. The Tribunal considered that request as an application for more time to produce material in writing pursuant to s 424AA. The Tribunal declined to grant the request for further time to produce those documents. 14 However, the Tribunal informed the applicant that he could provide further material to it prior to the publication of its decision, but informed the applicant that it would not delay the decision-making process. After the hearing, the applicant did not seek an extension of time in which to produce documents. The Tribunal decision is dated 8 April 2009. By that time, the applicant had not produced any further documentation. 15 The applicant says that he raised with the Federal Magistrate a request for more time to produce documents. He did not have any further documents by the time of the hearing before the Federal Magistrate on 21 July 2009. 16 The applicant has again sought more time to produce documents from me at this hearing. He does not have any further documentation, nor is there evidence of any steps that he has taken to obtain any further documents that he wishes to produce. 17 In the circumstances, it is hard to see that the Tribunal was in error or that the Federal Magistrate was in error in relation to the application for further time to produce documents. 18 As to the other aspects of the Federal Magistrate's decision, the applicant has failed to show any doubt about the correctness of his Honour's judgment. 19 Federal Magistrate Driver considered whether or not there had been a failure to comply with s 424A of the Act. His Honour formed the view that s 424A was not engaged. His Honour has not been shown to be in error. His Honour also concluded that the Tribunal had met whatever obligations had arisen under s 424AA. From his Honour's reasons at [7], his Honour considered the applicant's assertion that he needed more time to obtain documents from India. His Honour considered that the exercise of the discretion by the Tribunal to refuse additional time was a reasoned decision and reasonably based. The applicant has not shown that that conclusion was in error. 20 Before the Federal Magistrate, the applicant asserted that the Tribunal had failed to investigate his genuine claims of persecution in India. His Honour noted that the applicant's claims were simply not accepted by the Tribunal. The applicant asserted actual bias on the part of the Tribunal, but, as his Honour noted at [6], there was no evidence whatsoever to support that assertion. 21 The Minister submits that the concerns that the Tribunal had with the applicant's evidence were put to him. His Honour's conclusion that the Tribunal was frank and open in drawing attention to its concerns about the applicant's claims has not been shown to be in error. His Honour concluded that the ground based on s 424 of the Act was not made out, as there was no invitation for additional information pursuant to s 424. The applicant has not made out any such breach and there is no limitation on the general power under s 424(1) on the part of the Tribunal to obtain additional information (Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434). 22 As to the applicant's assertion of procedural unfairness on the part of the tribunal, in that he said the Tribunal did not give him an opportunity to be heard, his Honour rejected that assertion. 23 I accept the Minister's submission that there was no arguable case before the Federal Magistrate, and that the Federal Magistrates Court was entitled to exercise its discretion to dismiss the application without proceeding to a final hearing. There is not sufficient doubt about the Federal Magistrate's decision to warrant it being reconsidered by this Court. His Honour was entitled to dismiss the matter as he did. The applicant has not described any error in his Honour's decision. In my view, as the case has been presented in this Court, even if his Honour were in error, no substantial injustice would be suffered by the applicant if leave to appeal were refused. 24 It follows that the application for leave to appeal is dismissed. The applicant is to pay the first respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.