SZLZK v Minister for Immigration and Citizenship [2009] FCA 102 (11 February 2009)

Last Updated: 17 February 2009

FEDERAL COURT OF AUSTRALIA

SZLZK v Minister for Immigration and Citizenship [2009] FCA 102

SZLZK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1719 of 2008

GRAHAM J
11 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1719 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLZK Appellant

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

JUDGE:	GRAHAM J
DATE OF ORDER:	11 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the First Respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1719 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLZK Appellant

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

JUDGE:	GRAHAM J
DATE:	11 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who is identified for the purposes of these proceedings as ‘SZLZK’, was born in Arankudi, Tharankapadi Taluk, India on 27 July 1971. He is married and has one child, a daughter. His wife was born on 22 May 1987. The appellant and his wife married on 11 December 2005, and their daughter was born on 6 December 2006.
2. The appellant arrived in Australia on 23 July 2007. On 31 August 2007 he lodged an application for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 5 November 2007.
3. The appellant sought review of the Minister’s delegate’s decision in the Refugee Review Tribunal (‘the Tribunal’). His Application for Review was filed on 19 November 2007. He was invited to appear at a hearing before the Tribunal on 3 January 2008, and did so, with the hearing occupying almost three hours. The letter inviting him to attend a hearing was dated 29 November 2007.
4. Some nine days prior to that date, a letter dated 20 November 2007 was sent to the appellant acknowledging his Application for Review.
5. Under the heading ‘What does the Tribunal expect me to do?’ the following appeared:

‘You should:
...

• immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.’
  

6. Shortly after the letter inviting the appellant to attend a hearing was sent, a further letter dated 6 December 2007 was sent to the appellant inviting him to comment on certain information, that it was said may be the reason or a part of the reason for affirming the Minister’s delegate’s decision (see s 424A of the Migration Act 1958 (Cth) (‘the Act’)).
7. By a letter dated 6 December, which was apparently forwarded by facsimile to the Tribunal on 27 December 2007 the appellant responded to the letter of 6 December 2007. However, he did not, in his response or otherwise, send any documents, information or other evidence to the Tribunal that he wanted it to consider in support of his Application for Review of the Minister’s delegate’s decision.
8. On 8 January 2008 the Tribunal Member signed his Statement of Decision and Reasons. That decision was handed down on 29 January 2008. The Tribunal member decided that the decision not to grant the appellant a Protection (Class A) visa should be affirmed.
9. On 18 February 2008, the appellant filed an application for constitutional writ relief in respect of the decision of the Tribunal in the Federal Magistrates Court of Australia. That application was superseded by an Amended Application filed 5 May 2008. The Amended Application came before the Federal Magistrates Court of Australia, constituted by Cameron FM, on 19 September 2008. His Honour handed down his reasons for judgment (see SZLZK v Minister for Immigration [2008] FMCA 1391) on 14 October 2008. His Honour ordered that the application be dismissed and that the applicant pay the first respondent’s costs fixed in the amount of $4,000.
10. From that judgment, the appellant appealed to this Court by a Notice of Appeal filed 31 October 2008. The grounds of appeal relied upon were expressed as follows:

‘1. Cameron FM failed to consider the core integers of the Appellant’s case under the Migration Act of 1958. (Cth).

Particulars

Cameron FM failed hold that the Second Respondent failed to discern core aspects of the Appellant’s case and did not give a chance for the Appellant to comment on adverse material..’

11. When invited to address the Court on what adverse material the Tribunal had allegedly failed to afford the appellant a chance to comment on, his response was that he had submitted his TMMK identity card and that the Tribunal did not pay proper attention to it. The card in question was a membership card in respect of the appellant’s claimed membership of the organisation known as Tamil Nadu Muslim Munnetra Kazhagam. It will be apparent that the membership card did not amount to ‘adverse material’ in respect of the appellant. It would be quite wrong to suggest that the Tribunal failed to have regard to it, as the Tribunal member in the Findings and Reasons section of his Statement of Decision and Reasons said:

‘The applicant’s primary claim is that he fears persecution from the RSS due to his work for the TMMK. The applicant presented a membership card to confirm his membership of the TMMK. The Tribunal is prepared to accept that the applicant had been a member of the TMMK, although his inability to state when the TMMK was formed causes the Tribunal to question his claimed senior position in the party. ...’

12. The claimed senior position in the party was that of ‘District Secretary’ which the appellant claimed he had attained in his application for a protection visa. No other material was identified which was said to answer the description of ‘adverse material’ in relation to which it was said that the Tribunal denied the appellant a chance to comment upon.
13. The appellant asserted from the Bar table that he had been denied an opportunity to provide an extract from a local paper in India which addressed his involvement in seeking to convert non-Muslims in India to the Muslim religion. He asserted that he made mention of such a paper and asked for time to provide it, which he asserted he was denied. No evidence was placed before the learned Federal Magistrate to support this assertion. As has already been observed, the appellant was advised very early in the piece in relation to the consideration of his Application for Review that if there was any information that he wished to place before the Tribunal, he should do so. And he didn’t.
14. The Court cannot have regard to an assertion from the Bar table of a request said to have been made of the Tribunal which was said to have been denied. The Tribunal member said, in the course of his Statement of Decision and Reasons:

‘... for the following reasons the Tribunal rejects the applicant’s claim that the applicant became a target of the RSS due to his involvement with the TMMK and because he converted people to Islam or for any other reason.

The Tribunal rejects the applicant’s claims because, as noted above, the Tribunal found the applicant not to be a credible witness and the Tribunal does not accept that the applicant has been honest in his description of events in India.’

15. Earlier, in the Findings and Reasons section of the Statement of Decision and Reasons, the Tribunal member said:

‘The Tribunal found the applicant not to be a credible witness. The Tribunal found the applicant to be evasive and often unresponsive, on some occasions when inconsistencies were pointed out to him he claimed that he forgot the information or that he did not know that he would be questioned. ...’

16. It is clear that there is no substance in this aspect of the appellant’s case as particularised in his Notice of Appeal.
17. When asked what were aspects of his case that were not addressed in the Tribunal’s Statement of Decision and Reasons, the only response proffered by the appellant was to the effect, ‘I believe I haven’t presented my case very well to the Tribunal.’ No attempt was made to identify any aspect of his case which had not been addressed in the Statement of Decision and Reasons.
18. When asked if there was anything further that he wished to say in support of his Notice of Appeal, the appellant said words to the effect:

‘If I go back to India I will face a lot of hardship and trouble. I am only telling the truth, that the moment I land in my country I will face a lot of trouble. They are still making inquiries about me.’

19. The Tribunal found that the appellant did not have a genuine fear of persecution in India. It found that the appellant did not have a well-founded fear of persecution for any Convention reason. It found that the appellant would not be a target of the RSS in the future, and that there was no real chance that the appellant would face persecution for a Convention reason if he were to return to India ‘now or in the reasonably foreseeable future.’ 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 referred to by the Tribunal member as ‘the Refugees Convention.’
20. It is apparent that there is no merit in the first aspect of the ground of appeal relied upon.
21. It is not inappropriate that reference be made to the appellant’s travel history after he asserted that he had been assaulted in India in 1999 and allegedly involved in activities which, it was said, did not endear him to Hindu fanatics within the RSS, which I would understand to mean the Rashtriya Swayamsevak Sangh. After he was allegedly tortured and beaten, he travelled extensively outside India, returning to India on numerous occasions for up to three months at a time. He held Indian passports which were renewed and visited Thailand on numerous occasions, as well as Singapore and Malaysia. His passport, which was before the Tribunal, showed not only the numerous return visits to India, sometimes for protracted periods of up to three months, but also the obtaining of a visa allowing him to travel to Switzerland, which does not appear to have been utilised.
22. There is no merit in the appeal, and it should be dismissed.
    

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:
Dated: 16 February 2009

The Appellant appeared in person

Solicitor for the First Appellant:

E W Knight of Australian Government Solicitor

The Second Respondent filed a submitting appearance.

Date of Hearing:	11 February 2009
Date of Judgment:	11 February 2009