SZLUC v Minister for Immigration and Citizenship [2008] FCA 1319 (26 August 2008)

Last Updated: 28 August 2008

FEDERAL COURT OF AUSTRALIA

SZLUC v Minister for Immigration and Citizenship [2008] FCA 1319

SZLUC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 769 OF 2008

STONE J
26 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 769 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLUC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	26 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs of the appeal.













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 769 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLUC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE:	26 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of India who arrived in Australia on 11 May 2007. On 14 May 2007 he lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 2 July 2007. On 23 July 2007 the appellant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal on 27 November 2007 affirmed the decision of the delegate to so refuse. The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. Federal Magistrate Scarlett dismissed the application on 8 May 2008, which is the decision from which he now appeals to this Court.

2 The appellant claimed to fear persecution in India because of his political opinion and his religion. He said he was born into an orthodox Hindu family. From 2004 he was actively involved with radical Hindu movements and organisations that had a goal of making India a Hindu state "by any means". They included the Rashtriya Swayamsevak Sangh (RSS), which nominated the appellant "to disrupt a miracle crusade held by the Indian Pentecost Mission". As a result of his interaction with the Pentecost Mission the appellant became involved with Christianity. At the end of 2005 he ceased his involvement with the Hindu movement and joined the Pentecost Mission. As a result he claimed to have suffered physical violence and threats from members of Hindu organisations, particularly former colleagues from the RSS. He claimed there was an attack on 14 September 2006 in which members of the RSS pulled him out of his car and hit him with an iron bar. He asserted that he would be "traced" by them if he returns to India, and that he cannot obtain protection against harm from them.

3 The Tribunal did not accept the appellant’s account of his activities as a member of a Hindu organisation, his subsequent conversion to Christianity or his claim that he had been attacked and/or threatened by members of Hindu organisations. The Tribunal made an adverse credibility finding against the appellant on the basis of several evidentiary factors discussed with the appellant at the hearing on 20 September 2007:

• the fact that the appellant and his family had remained resident in the same place throughout the period in which he was allegedly sought by his Hindu opponents, and had been unable to provide a satisfactory explanation for why this was so;

• the appellant’s minimal knowledge of Christianity when questioned by the Tribunal; and

• in view of country information regarding widespread document fraud in India, the likelihood that documents submitted by the appellant (a hospital report, a police report and a letter allegedly from the Pentecostal Mission) were forged. The fact that the appellant had failed to present these documents when initially making his application despite their apparent importance was a contributing factor.

4 The Tribunal concluded by stating that there was no plausible evidence before it to demonstrate that the appellant had been persecuted by reason of religion, political opinion or any other basis in India, or that there was a risk of this occurring in the reasonably foreseeable future. As such, the Tribunal did not accept that the appellant held a well-founded fear of Convention-related persecution in India.

THE FEDERAL MAGISTRATE’S DECISION

5 The appellant’s grounds of review before the Federal Magistrate were that the Tribunal (a) did not accept his claims; (b) had failed to comply with s 424A of the Migration Act 1958 (Cth); and (c) was unfair and biased against him.

6 The Federal Magistrate was of the opinion that the first ground of review amounted to a claim for impermissible merits review. In relation to s 424A of the Act, his Honour noted that the Tribunal decision was based on an adverse credibility finding. The information relied upon by the Tribunal to come to that finding was the oral and documentary evidence adduced by the appellant and country information, both of which are excluded from the operation of s 424A(1) by s 424A(3). Moreover, there was no evidence before the court to indicate bias or want of good faith on the part of the Tribunal in the sense outlined in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. His Honour was satisfied that the Tribunal had understood the nature and extent of the appellant’s claims and had considered those claims. The application was accordingly dismissed on the basis that the appellant had failed to identify any jurisdictional error on the part of the Tribunal.

THIS APPEAL

7 On appeal to this Court the appellant claimed that the Tribunal had denied him procedural fairness and natural justice and had made a jurisdictional error in not complying with s 424A(1) of the Migration Act 1958 (Cth). In his written submissions the appellant claimed that:

... the RRT failed to provide to me particulars of information that formed the reason or part of the reason for affirming the [delegate’s] reasons. Section 424A letter was not sent to me about the issues raised during the hearing and after the hearing. Please refer to the pages of the RRT decision in which the RRT did not accept some of my Convention claims, which should have been put to me for my comments.

8 At the hearing of the appeal the only submissions made by the appellant amounted to a request for merits review which, of course, is not within this Court's jurisdiction.

9 The first respondent’s written submissions outlined the background to the appeal and included only the following short comment in relation to the ground of appeal:

The application to the Tribunal was governed by s.422B of the Act, such that Division 4 of Part 7 of the Act exhaustively set out the requirements of the natural justice hearing rule in relation to the matters dealt with in the Division. There is no indication in the present case that the Tribunal failed to fulfil any of the statutory requirements of Division 4 of Pt 7 of the Act. The first respondent submits that the findings of the Tribunal were clearly open to it on the evidence before it and that his Honour was correct in holding that its decision was not affected by jurisdictional error.

10 I am satisfied that the Federal Magistrate was correct in holding that the obligations imposed on the Tribunal by s 424A had been met for the reasons his Honour gave; see [6] above.

11 At the hearing of the appeal, however, I raised an additional issue with Ms Anniwell, the solicitor who appeared for the first respondent. The issue was whether the Tribunal, when it asked the appellant at the hearing to provide a translation of the police report he had submitted, was acting under s 424(2) of the Act, and hence subject to the requirements of ss 424(3) and 424B when it gave the appellant time to provide a translation of the document. The exchange between the Tribunal and the appellant is recounted in the following extract from the Tribunal’s reasons:

The Tribunal noted that the document headed from Kerala Police, First Information Report that he has produced is in his language and asked him what it says. He said that it was written by a sub inspector of police about the [September 2006] incident he was involved in and what is stated there is what happened; unidentifiable people attacked him with weapons at a place which he named and they intended to kill. The Tribunal told the applicant that the document would need to be translated so that it could consider it ... ... The Tribunal allowed the applicant until 13 October 2007 to obtain a translation of the document described as the police report and send that translation to the Tribunal. [emphasis added]

12 Ms Anniwell requested time to provide additional written submissions on this point, which had not previously arisen. Subsequent to the hearing the first respondent filed additional submissions prepared by Mr G Kennett of counsel. The appellant was also given the opportunity to provide additional submissions however no submissions were forthcoming within the time allowed by the Court.

13 Mr Kennett submitted that there was no invitation to give additional information within the meaning of s 424(2) for a number of reasons. It is not necessary to set out those submissions in detail. In brief, Mr Kennett submitted that the Tribunal had not requested or solicited information but, having had a discussion with the appellant about the contents of the police report, merely informed the appellant that if he wished the Tribunal to consider the document further he would have to provide a translation. In Mr Kennett's submission, "The translation merely provided the contents of the [police report] in a more accessible form and was intended to corroborate what the Appellant had already told the Tribunal ...".

14 In my view, the answer to the question in issue does not depend on whether there was an "invitation". It is quite possible to construe the Tribunal’s exchange with the appellant as inviting him to provide the translation. But, be that as it may, any such invitation or request was not for "additional information" but, as Mr Kennett submitted, for information that had already been provided, to be provided in a different form. An accurate translation would contain the same information as contained in the document initially submitted by the appellant. For that reason I do not regard the Tribunal as having exercised its power under s 424(2); no breach of that section or s 424B was involved.

15 For these reasons the appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 26 August 2008

The Appellant appeared in person.

Counsel for the Respondents:	G Kennett
Solicitor for the Respondents:	B Anniwell of Australian Government Solicitor
Date of Hearing:	5 August 2008
Date of Judgment:	26 August 2008