SZLOV v Minister for Immigration and Citizenship [2009] FCA 459 (8 May 2009)

Last Updated: 11 May 2009

FEDERAL COURT OF AUSTRALIA

SZLOV v Minister for Immigration and Citizenship [2009] FCA 459

SZLOV and SZLOW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 122 of 2009

BESANKO J
8 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 122 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOV First Appellant SZLOW Second Appellant

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

JUDGE:	BESANKO J
DATE OF ORDER:	8 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
   

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 122 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOV First Appellant SZLOW Second Appellant

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

JUDGE:	BESANKO J
DATE:	8 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by the Federal Magistrates Court on 27 January 2009. On that day, a federal magistrate ordered that the appellants’ application for constitutional writs directed to the Minister for Immigration and Citizenship and the Refugee Review Tribunal (“the Tribunal”) be dismissed and that the appellants pay the Minister’s costs.
2. The appellants are citizens of India. On 11 May 2007, they arrived in Australia and, on 14 May 2007, they applied for Protection (Class XA) visas. On 1 June 2007, a delegate of the first respondent decided to refuse their applications and the appellants were notified of those decisions and their review rights.
3. The appellants made an application for review of the delegate’s decisions to the Tribunal and, on 14 September 2007, the Tribunal affirmed the delegate’s decisions not to grant protection visas to the appellants. On 30 January 2008, the appellants instituted proceedings in the Federal Magistrates Court, seeking constitutional writs with respect to the decisions made by the Tribunal on 14 September 2007. By consent, the Federal Magistrates Court set aside the decisions and remitted the matter to the Tribunal to be determined according to law.
4. The Tribunal reconsidered the matter and, on 12 August 2008, it advised the appellants that it had decided to affirm the decisions not to grant protection visas to the appellants. The appellants issued their application for constitutional writs in the Federal Magistrates Court on 29 August 2008. The grounds of their application were as follows:

“1. The Tribunal failed to give any valid reason why it considered that the Applicants exaggerated their evidence and completely rejected the claims on the grounds that the Applicants are not credible witnesses.

2. The Tribunal’s decision was vague and inconsistent. The Tribunal’s decision was made erroneously without giving careful consideration to the material facts given by the Applicants and had made a jurisdictional error.”
   
5. As I have said, on 27 January 2009 the federal magistrate made an order dismissing the appellants’ application.

The federal magistrate’s reasons

6. The appellants are husband and wife. They come from Kerala in India. The wife is the first appellant. In her application for a protection visa, she claimed to have suffered persecution from Muslim fanatics who had support from the Communist Party in Kerala. She claimed that she suffered persecution because she had provided assistance to poor Hindus who had been persecuted by the Muslims and the Communist Party of India.
7. The second appellant is the husband and he is what the federal magistrate described as “a Part D applicant” in that his claim for protection arises from his membership of the family unit of the first appellant. The Tribunal said that, during the review, the second appellant also made his own claims.
8. The federal magistrate described the first appellant’s claims in the following way:

“The first applicant’s claim was set out in a four page statement submitted with the applications for protection visas. In that statement, she claimed that in Kerala the Rashtriya Swayamsevak Sangh (RSS) and the Hindu BJP party were involved in promoting Hinduism in Kerala while the Muslims with the help of the Communist party were trying to colonise the Hindu coastal areas into Muslim areas and convert the Hindus to follow the Muslim faith. She claimed that atrocities were committed against poor Hindu families.
The first applicant claimed that as a result of her activities she was stoned and chased away by Muslims. She claimed to have been assaulted and interrogated by the Muslim authorities and branded as a member of the RSS. After the first applicant married her husband, he became involved in politics and assisted her at the Hindu temple.
The first applicant claimed that she was accused of working for the RSS, even though she had no involvement with them, and she and her husband were assaulted and threatened. She claimed to have been detained for three months but her husband secured her release with the assistance of BJP politicians.
The second applicant fled to Tamil Nadu because he was threatened with abduction. The applicants obtained visas to leave India but before they could do so, the first applicant was arrested by the authorities in December 2006.”

9. The first appellant said that she was detained at a police station and sexually assaulted. Her husband had to pay a “huge amount of money to the politicians” to secure her release from detention. She was released on condition that she leave India. She claims that she wishes to practise her religion, and that she “was born and bred at the Hindu”. She claims that, as a Hindu, she was targeted by Muslim fanatics.
10. The decisions of the first Tribunal were handed down on 4 October 2007. Shortly prior to the Tribunal hearing on the remitter, the appellants, in a letter to the Tribunal, advised it that the first appellant’s brother and the second appellant’s mother were attacked by “a Muslim mob” on their way home from a Hindu temple on 26 December 2007. As a result of the beating she sustained, the second applicant’s mother died. The first appellant’s brother attempted to complain to the police but he was sent away. On 31 December 2007, he was murdered. The Tribunal was also advised that the appellants had converted to Christianity. The letter to the Tribunal stated that copies of the death certificates of the first appellant’s brother and the second appellant’s mother respectively were attached. In fact, only the death certificate of the second appellant’s mother was attached.
11. After the Tribunal hearing on the remitter, the Tribunal sent the appellants a letter under s 424A of the Migration Act 1958 (Cth). As the federal magistrate noted, there were eight separate items of information upon which the Tribunal sought comments, six of which related to inconsistencies in the parties’ evidence, and the other two were said by the Tribunal to be relevant to the question of whether the appellants’ fear of persecution was well founded.
12. The federal magistrate noted that the Tribunal member found that the appellants were not credible witnesses and that he made that finding on the ground that their evidence changed and was inconsistent throughout the hearing. It was also inconsistent with earlier evidence given in a hearing before a differently constituted Tribunal. It was inconsistent with written submissions provided by the appellants’ representative to the Tribunal and also with their original statements. The federal magistrate noted that, in the alternative, the Tribunal concluded that the appellants could safely relocate to another part of India.
13. The federal magistrate rejected the first ground of the application, saying that it was an attempt at merits review of the Tribunal’s findings that the appellants were not credible witnesses. He said that the Tribunal had set out clearly the reasons why it had made the adverse findings it did, and that those findings were open to it on the evidence.
14. The federal magistrate rejected the second ground of the application, saying that it was “difficult, if not impossible, to see where the Tribunal decision [was] vague or inconsistent”, and that, in any event, vagueness and inconsistency did not constitute jurisdictional error.
15. In their written submissions to the federal magistrate, the appellants claimed that the Tribunal had fallen into jurisdictional error and in support of that claim they identified six matters. The federal magistrate considered each matter and decided that none of them were made out.

Issues on the appeal

16. The appellants appeared in person. Their complaints about the federal magistrate’s decision are to be found in their notice of appeal, their written submissions and their oral arguments.
17. The notice of appeal contained grounds which, for the most part, were expressed in very general terms. Where the grounds are specific they are assertions that, plainly enough, the Tribunal member rejected on the ground that she did not accept the appellants as witnesses of credit. The appellants also claim that the Tribunal member erred in not applying the approach referred to in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 to the effect that the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur (see at 239 [60] per Sackville J (with whom North J agreed), at 255 [137] per Kenny J). That criticism is not justified in this case because the Tribunal member was satisfied that the alleged events did not occur. It seems to me, on a fair reading of the Tribunal member’s reasons, that she had no doubt about the findings she made. Finally, in relation to the notice of appeal, the appellants claim that the Tribunal member wrongly required corroboration of their claims. That criticism must be rejected. The fact is the Tribunal member did not accept the appellants’ evidence and the Tribunal member simply recorded the fact that the appellants were given the opportunity to present further evidence to support their case.
18. The appellants’ written submissions raise a criticism of the federal magistrate’s conclusion with respect to the issue of the possible relocation of the appellants to another part of India. Other than that, the written submissions raise nothing additional to those matters raised in the notice of appeal. The federal magistrate found that the Tribunal approached the matter of relocation appropriately, by considering “what was reasonable, based on the circumstances of the particular applicants and the possible impact upon them of relocating within India”, and I can detect no error in his reasoning.
19. In oral argument, the second appellant, who spoke on behalf of his wife and himself, submitted that the Tribunal had committed jurisdictional error because it had not given him sufficient time to obtain the death certificate of the first appellant’s brother, and articles establishing the profiles of the appellants in Kerala.
20. The first respondent met this submission by saying that it was inconsistent with what the appellants had told the Tribunal and, in any event, with the findings of the Tribunal to the effect that the appellants had been given adequate time to provide the documents. The first respondent’s submissions are correct.
21. As to the death certificate of the first appellant’s brother, the Tribunal said:

“No copy of the brother’s death certificate was provided to the Tribunal. The second named applicant gave further oral evidence that he could not provide the death certificate as it was returned to India because he delayed getting to his post box. Despite several requests and adequate time being allowed no death certificate was provided. The Tribunal was not satisfied that the first named applicant’s brother was murdered as described by the applicants.”

22. As to articles establishing the profiles of the appellants in Kerala, the Tribunal said:

“The Tribunal asked if they were mentioned in the media. The second-named applicant stated that they were mentioned many times, hundreds of times and that both their names were reprinted. The Tribunal asked if applicants had any copies of those media reports. The applicants replied, ‘no, we did not keep them’. The second-named applicant stated that it was in local newspapers in Kerala...
The Tribunal asked the applicants to explain why there was no record on any of the databases. The second-named applicant said that was because they were only local papers and they do not have any websites.
The applicants claim they are high profile and have been named hundreds of times in local papers. They claim they cannot get any copies of this newspaper coverage as it is only local papers. They then claim they would be at risk all over India due to their high profile. The Tribunal does not accept that the applicants are high profile people in relation to their work with poor Hindus or their political beliefs. The Tribunal makes this finding as it is found that the applicants are not truthful witnesses and no evidence has been found following Tribunal searches. The applicants were given ample opportunity to provide further evidence which showed they were high profile and when requested to do so said there was no evidence as it was only local.”

23. In my opinion, there is no error in the reasons of the federal magistrate in so far as he rejected the attack on the Tribunal’s decision as to the credit of the appellants. In the alternative, there is, as the first respondent submitted, no error in the federal magistrate’s conclusion that the Tribunal approached the issue of relocation correctly.

Conclusion

24. The appeal must be dismissed.
    

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 8 May 2009

The Appellants appeared in person
Counsel for the First Respondent:	Ms L A Clegg
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	6 May 2009
Date of Judgment:	8 May 2009