SZLKP v Minister for Immigration and Citizenship [2009] FCA 145 (16 February 2009)

Last Updated: 26 February 2009

FEDERAL COURT OF AUSTRALIA

SZLKP v Minister for Immigration and Citizenship [2009] FCA 145

Migration Act 1958 (Cth)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 considered

SZLKP and SZLKV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD1866 of 2008

LOGAN J
16 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1866 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKP First Appellant SZLKV Second Appellant

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

JUDGE:	LOGAN J
DATE OF ORDER:	16 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellants are to pay the First Respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
   

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	NSD1866 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKP First Appellant SZLKV Second Appellant

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

JUDGE:	LOGAN J
DATE:	16 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellants came to Australia on 17 March 2007. The following month, on 18 April 2007, they lodged an application for a protection visa with the Department of Immigration and Citizenship. Of the two Appellants, only the male Appellant has appeared today. He has made submissions, though, on his own behalf and, as he informed me, also on behalf of his wife.
2. The protection visa application that they came to make entailed what one might describe as a derivative claim on the part of the male Appellant’s wife. I use the term “derivative” because the female Appellant made no separate claim for a protection visa based on particular events unique to her. Rather, her claim depended upon the satisfaction of the criteria being engendered on the part of the claim made by the male Appellant. As it happened, that satisfaction was not engendered when the visa application came to be considered by a delegate of the Minister for Immigration and Citizenship (the Minister). The Minister is the active party Respondent to this appeal.
3. On 18 May 2007, the Minister’s delegate refused the protection visa application. On 8 June 2007, the Appellants sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal). On 4 September 2007, for reasons which it pronounced orally that day, the Tribunal decided to affirm the decision not to grant to the Appellants a protection visa. That decision and the reasons were later communicated in writing to the Appellants. The Appellants then sought the judicial review of that decision by the Federal Magistrates Court. On 18 November 2008, for reasons which the Federal Magistrates Court gave that day, the application was dismissed. It is from that decision that the Appellants appeal to this Court.
4. The ground of appeal is expressed in the notice of appeal in these terms:
   1. The court below erred in that it ought to have held that on the evidence before the tribunal, it was open to the tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances, the tribunal erred in that:
      

(a) It failed to properly apply the consideration the appellant the applicant for refugee status ought to be given the benefit of the doubt in circumstances where the tribunal entertained the possibility that the applicant claims are plausible, which was the case here. [sic]

5. Regard to the reasons for judgment of the learned Federal Magistrate discloses that there were other grounds pursued, or at least raised in submissions, before that court. Be this as it may, the ground of appeal advanced in this Court is dependent upon the premise that the Tribunal had entertained the possibility that the male Appellant’s claims for a refugee-related protection visa were plausible.
6. The inspiration for the ground in the notice of appeal would seem to be an acceptance by this Court in earlier authority of guidance offered by the United Nations High Commissioner for Refugees in the 1979 edition of the Handbook on Procedures and Criteria for Determining Refugee Status. One there finds the following statement:

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked, and when the examiner is satisfied as to the applicant’s general credibility.

7. The “examiner” in this instance was, relevantly, the Tribunal.
8. The difficulty about the premise on which the ground of appeal proceeds is that one does not find in the Tribunal’s reasons a conclusion as to plausibility in favour of the Appellants. In other words, one does not find a conclusion that there is at least the possibility that the claims are plausible. Instead, at page 142 of the appeal book, one sees the following passage in the Tribunal’s reasons:

The Tribunal’s overall conclusion, however, is that the applicant has exaggerated and fabricated his claims about what happened to him after he re-established his business, giving weight to the applicant’s oral evidence about the continuing viability of his business and giving no weight to what it regards as his far-fetched claim about running the business out of his home without his partners knowing. The Tribunal finds on the evidence before it that whether or not there was an initial disagreement with those partners, say in early 2005, about appropriate and timely disbursement of the business’s takings, it did not lead to the applicant having to change his life in any significant way.

The Tribunal is all the more confident that the applicant is fabricating this part of his case because whereas he claims the threats were serious and that they involved a gang with an arguably fearless history of violence, he continued to be unharmed even after he refused to meet demands. The Tribunal is of the view that the kidnap story was invented and that the deadline story was improvised by him at the hearing after the Tribunal expressed concern at his having been able to go free in the claimed circumstances.

When the Tribunal expressed concern at the applicant surviving a further two years, he said he was forced to shut his shop. But that claim is undermined by his oral evidence about the business (which he said was being run from home) continuing and about it not being at risk. On the crucial issues under review, the Tribunal simply does accept the applicant as a witness of truth.

9. By way of background, I should state that the claim advanced by the male Appellant was a fear of persecution in India due to his adherence to the Hindu religion. His claim was that his shop in Gujarat was set on fire - “torched” - during riots which occurred in that Indian state in 2002. His claim was that he later attempted to enter into a commercial arrangement with neighbouring Muslim shopkeepers so as to prolong his business, but that they had kidnapped him in March 2005 after a dispute about the settlement of accounts. Those kidnappers, so the male Appellant claimed, were associated with the “Latif” criminal gang. The male Appellant stated that he was subsequently forced to close his shop, but had made a claim that he had continued to run the business from home for some time thereafter.
10. Findings of credibility are, putting aside those which are illogical, matters for the Tribunal. There is no illogicality in the Tribunal’s findings in the passage quoted, having regard to the evidence before it and the parts of the evidence the Tribunal chose to accept or not accept. What this means is that the premise for the failure to give a benefit of the doubt and in turn a failure on the part of the Federal Magistrates Court to quash the Tribunal’s decision because of such a ground is simply not made out.
11. There is, then, nothing in the identified ground of appeal. It is worth recording that, in the passage preceding that quoted, the Tribunal had opined that even if it accepted the Appellants’ claim at face value, it would not be satisfied on the evidence before it that the harm feared by the male Appellant was by reason of convention related factors. In this regard, the Tribunal expressly turned its mind to religion and also membership of a particular social group, namely, as to the latter, the status of private businessman. The Tribunal reached the conclusion that what it described as:

...purely individual mercenary motivations, some of them individually criminal ones

were the essential and significant factors in the harm that the male Appellant claimed to have suffered or feared.

12. In the course of oral submissions, the male Appellant made reference to an absence on the part of his wife at the hearing before the Tribunal. He also made reference to what he stated was a failure to give time to him to supplement evidence to support his case. Such vices were said to infect also the proceedings in the Federal Magistrates Court.
13. Regard to the appeal book discloses that the Tribunal extended to the Appellants, as the Migration Act 1958 (Cth) (the Act) required, an invitation to appear before the Tribunal: see pages 117 and 118 of the appeal book. The invitation was given by a letter dated 25 July 2007. It extended to both the male and female Appellants. The male Appellant, in response, signified a desire on his part to attend and give evidence at the hearing as scheduled: see his response of 30 July 2007 on the response to hearing invitation form on page 119 of the appeal book.
14. Unfortunately, the male Appellant was not able to take up the invitation and attend as he wished on the date originally scheduled. He missed his flight from Griffith on that day. He promptly communicated this by facsimile to the Tribunal. The upshot was that the Tribunal, seized with this knowledge, very properly rescheduled the hearing. The rescheduled hearing was the subject of an invitation to attend directed again to each of the Appellants: see the Tribunal’s letter of 22 August 2007, appeal book pages 124 and 125. Again, it was the male Appellant who took up that invitation: see his response dated 30 August 2008. The reference on the form to 2008 appears to be in error, having regard to the facsimile imprint on it, which is dated 30 August 2007.
15. On the rescheduled hearing the male Appellant gave oral evidence before the Tribunal. A perusal of the Tribunal’s reasons, and this is the only evidence of the course of proceedings before the Tribunal which was before the Federal Magistrates Court, discloses that in the course of the hearing the Tribunal raised a series of issues with the male Appellant which were of evident concern to the Tribunal. These were:

(a) how he was able to afford to come to Australia in the circumstances (ie, the circumstances of his claimed difficulties in relation to carrying on his shop business);

(b) how the male Appellant could reconcile his claim about being forced to close his shop to avoid succumbing to criminal levels of pressure to pay early dividends in 2005 with his claim about subsequently being able to present Jeans Station business reports in support of his application for an Australian visa;

(c) that the male Appellant appeared to have convinced the department that he was running a viable business;

(d) that one might infer, from the fact that the male Appellant’s business was still operating, that it was never damaged in the manner claimed;

(e) that the male Appellant’s claims did not appear to be about “religion” or any other factor;

(f) that the male Appellant, on his oral evidence, appeared still to be running the Jeans Station business at the time of the hearing if he continued to share 50% of profits with his partner investors, as per the original agreement; and

(g) that the Tribunal might draw negative inferences as to the male Appellant’s credibility due to his having given evidence that his business continued to run at the time he applied for his protection visa.

16. The male Appellant gave responses to the Tribunal to each of those particular subjects when they were raised.
17. In adopting this course, it seems to me that the Tribunal was alive to the procedure, counselled by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at especially 602, para 43. There, in respect of a Tribunal proceeding, the court noted that the Tribunal had not identified particular aspects of the visa Applicant’s account as important issues in the course of the hearing; that it had not challenged what the visa applicant had said; and that it did not say anything to him that would have revealed to him particular issues that were live issues in the context of the consideration of that particular visa application. Rather, based on what the delegate had decided, the Tribunal had left the visa Applicant in that case in a position where he would, and should, have understood that there was a quite different central and critical issue for determination, in the context of that case, as to whether the Tribunal was satisfied that a claim for a protection visa had been made out.
18. No such criticism can be voiced of the way in which the Tribunal dealt with the case in this instance, nor in any failure on the part of the Federal Magistrates Court to quash the decision of the Tribunal on such a basis. Instead, what is revealed is a considered value judgment by the Tribunal, having well and truly put the male Appellant on notice in respect of critical, factual issues for determination.
19. It is worthy of note, also, that the Tribunal asked the male Appellant, in the course of the hearing, whether he had any other information to provide in relation to the visa application, and that he responded that he did not. It was then that the Tribunal gave the male Appellant notice that the Tribunal might, on the information before it, be in a position to give an oral decision. The response, apparently made by the male Appellant, was that he wanted to change his life, and that he came “here”; ie, to Australia.
20. Evident in the Appellant’s written submissions are other criticisms of the Federal Magistrates Court’s reasons for judgment. None of these have translated into a ground of appeal, save for the “benefit of the doubt” point. As to the others, there is a procedural fairness challenge, which is enmeshed with a challenge to the finding of the Tribunal of exaggerated or fabricated claims. It is evident enough from what I have set out above in relation to the course adopted by the Tribunal at the hearing, that there is no foundation for the procedural fairness challenge. To the contrary, it is evident that the Tribunal went out of its way to extend, in respect of particular critical issues, an opportunity to be heard to the male Appellant. His wife sought no hearing. Further, and as I stated at the outset, her claim was derivative.
21. The other basis of challenge is that the Tribunal failed to investigate claims, and that the Federal Magistrates Court should have found this to be a jurisdictional error. The difficulty about this ground is that the Tribunal is under no general obligation to investigate claims, and neither was it, in the particular circumstances of this case, under a particular obligation to conduct any investigation.
22. So it is that, however one approaches this appeal, either by reference to the identified ground of appeal, or those canvassed in an abbreviated way in the Appellants’ written submissions, there is no merit. For completeness, I should observe that there is not a scintilla of evidence which would support any denial of procedural fairness to either the male or female Appellant in the proceedings before the Federal Magistrates Court.
23. It follows that the appeal must be dismissed.
    

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 25 February 2009

Counsel for the Appellants:	The Appellant appeared in person
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	16 February 2009
Date of Judgment:	16 February 2009