SZDFE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1749 (15 December 2004)

Last Updated: 4 January 2005

FEDERAL COURT OF AUSTRALIA

SZDFE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1749

SZDFE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1526 of 2004






















WHITLAM J
15 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1526 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDFE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	Leave to appeal from the judgment of the Federal Magistrates Court given on 1 October 2004 is refused.
2.	The applicant is to pay the respondent’s costs of this proceeding fixed in the sum of $2000.

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 1526 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDFE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	15 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This proceeding was initiated when the applicant filed on 19 October 2004 a document described as a notice of appeal from a judgment of the Federal Magistrates Court (SZDFE v Minister for Immigration [2004] FMCA 696) dismissing as incompetent his application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 5 March 2002. The Tribunal’s decision affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2 The background to that application is set out in the reasons for judgment of the Federal Magistrate:

‘1. ...The applicant, a citizen of India, arrived in Australia on 9 March 2000 and applied for a protection visa on 25 April 2000. The application was refused on 4 July 2000 and the applicant sought review by the Tribunal. The Tribunal held a hearing on 8 January 2002.
2. The applicant claimed to fear persecution by reason of his political opinion. In his original protection visa application he claimed to be a member of the Congress Party and claimed to have been harassed by the ruling Akali BJP Government in the Punjab, that the police had detained him. They had not physically harmed him although he claimed to be suffering considerable mental stress. In his oral evidence he claimed to have suffered numerous assaults by the police and/or the BJP Akali over many years in the Punjab. In the course of the hearing he detailed claims that were not consistent with those in his written claims.
3. The Tribunal reasons for decision indicate that in the course of the hearing the Tribunal put to the applicant that his accounts of his experience in the protection visa application and in his oral evidence were very different and that this could lead the Tribunal to find that he was not a credible witness. The applicant was given an opportunity to comment. He suggested first that his agent had made up the written account and later claimed that the police came often came to his family home but he was often not at home. He said that he was taken to the police station twice and beaten with sticks before his uncle got him out and that he had temporary pain but no injuries. He claimed to fear that if he had stayed in India he would have had a false case made against him.
4. The Tribunal gave the applicant a further opportunity to comment on its concerns in a letter dated 8 January 2002. No comments, further submissions or information was received from the applicant.
5. The Tribunal accepted that the applicant was a member of the local Congress Party and at some stage a block youth leader and that his uncle and father held positions in the Party. However in relation to his other claims the Tribunal was not satisfied that the applicant was a credible witness. The Tribunal reached this conclusion having regard to the considerable difference between his oral and written claims and his unsatisfactory explanation for this, in particular, his blaming the migration agent. It also had regard to his inability to explain certain aspects of his claims, as well as the inconsistencies and the implausibility in aspects of his claims. The Tribunal rejected the applicant's claims to have suffered harm in India in the past. It did not accept that he had suffered treatment amounting to persecution as a result of his own political activities or for reasons of being related to his uncle or father. Such claims were implausible given the absence of any harm to his relatives despite their involvement in the Congress Party.
6. The Tribunal went on to say that even if the applicant had been harassed or mistreated by the police on two occasions as he had claimed when questioned about the inconsistencies, this was insufficiently serious as to amount to persecution within the meaning of the Convention or to satisfy the Tribunal that adequate protection was not available to him. The applicant was not injured and his ability to help the family with their farm was not seriously impeded. The Tribunal accepted independent country information referred to in the Departmental decision about the availability of State protection (which was raised in the hearing, according to the reasons for decision,) and noted that neither the applicant nor his family had taken any steps to seek protection or redress against any alleged mistreatment.
7. Finally the Tribunal found that if the applicant did still fear problems in his home area because of his former political activities and/or relationship with his uncle or father it was reasonable for him to relocate elsewhere in the Punjab or in India. It had regard to matters such as the fact that he had previously lived in Delhi without incident for some considerable time, his youth, marital status, and education, and the time he had maintained himself away from his home.
8. The applicant filed an application for review in this Court on 5 April 2004 and also an accompanying affidavit. He complained generally that the Tribunal exceeded its jurisdiction and made an error of law. The only particulars given were that the Tribunal made a jurisdictional error by concluding that if he still feared problems in his home area it was reasonable for him to relocate elsewhere in India. The accompanying affidavit repeated his claims to fear persecution. He did not file written submissions.
9. The applicant claimed that further documentation from India which he had not yet received would assist him to establish his case. He was unable to explain to the Court how this could be the case other than to suggest that he would be able to obtain documentary evidence in support of factual aspects of his claim.’

3 At a directions hearing on 17 November 2004 I directed that, in view of the fact that the judgment from which the applicant sought to appeal was an interlocutory judgment and that the respondent had filed an objection to competency, the proceeding be treated as an application for leave to appeal. Consequential directions were given relating to the filing of an amended application for leave to appeal and submissions in support of the application, which was fixed for hearing today. No amended application was filed. No submissions were filed. The grounds of appeal stated in the purported notice of appeal are unhelpful and in no way suggest the nature of the case, the questions involved in this matter or any reason why leave should be given. There is no apparent error in the reasons of the Federal Magistrate and no basis for the bald allegation of error in the so-called grounds of appeal. In particular, I note what the Federal Magistrate said in her reasons about the application to that Court:

‘11. In this instance the Tribunal findings were open to it for the reasons it gave, which I have referred to above. Moreover, it is notable that the Tribunal in fact raised with the applicant in the course of the hearing its concerns about his credibility and the inconsistencies in his claims and gave him a letter inviting him to comment on its concerns about such inconsistencies. This gave him an opportunity to provide further information to the Tribunal after the Tribunal hearing. He did not avail himself of this opportunity. There is nothing in the material before me to suggest that there is any lack of procedural fairness in the manner in which the Tribunal proceeded.
12. The Tribunal conclusion that the applicant had not suffered harm amounting to persecution, that he could access protection and could reasonably relocate within India are also findings of fact which were open to the Tribunal for the reasons it gives. The applicant takes issue with the Tribunal conclusions that it was reasonable for him to relocate in India. However there is nothing on the material before me to indicate that such findings were not made in accordance with the authority of Randhawa v MILGEA (1994) 52 FCR 437. The Tribunal correctly considered whether the applicant's fears were well founded in relation to India and not simply the area in which he lived and considered the reasonableness of relocation on the evidence before it including the matters that it raised with the applicant in the course of the hearing in accordance with the approach suggested by Chief Justice Black in Randhawa.
13. On the material before me no jurisdictional error is apparent and the application must be dismissed. Accordingly, it is not necessary for me to consider whether relief should be refused based on the delay of more than two years before the applicant sought judicial review of the Tribunal decision.’

4 The principles governing the grant or refusal of leave are well known: Decor Corp Pty Ltd v Dart Industries Inc (1991) FCR 397. Applying those principles, there is no basis shown on which leave should be granted. Accordingly, leave to appeal is refused. The applicant must pay the respondent’s costs of the proceeding.

5 An application is made by the respondent for the amount of the costs to be fixed in an amount of $2000. The applicant says nothing as to that quantum save that he is unable to pay any costs. That is not a reason for not fixing the quantum of the costs. The respondent says that the solicitor-client costs are in excess of $2600. In the circumstances it strikes me as reasonable having regard to the fact there have been two directions hearings and today’s hearing, and that I accept what Ms Rayment says about the actual amount of solicitor-client costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 21 December 2004

The applicant appeared in person

Solicitor for the respondent:	Ms B M Rayment from Sparke Helmore
Date of hearing:	15 December 2004
Date of judgment:	15 December 2004