SZOCV v Minister for Immigration and Citizenship [2011] FCA 149 (15 February 2011)

Last Updated: 25 February 2011

FEDERAL COURT OF AUSTRALIA

SZOCV v Minister for Immigration and Citizenship [2011] FCA 149

Citation:		SZOCV v Minister for Immigration and Citizenship [2011] FCA 149
Appeal from:		SZOCV v Minister for Immigration & Anor [2010] FMCA 883
Parties:		SZOCV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1672 of 2010
Judge:		NORTH J
Date of judgment:		15 February 2011
Date of hearing:	15 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	12
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms K Whittemore
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1672 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NORTH J
DATE OF ORDER:	15 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal is refused.
2. The applicant pay the first respondent’s costs of the application.

THE COURT DIRECTS THAT:

3. Any reference to the name of the applicant in the transcript of proceedings be replaced with the words “the applicant”.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1672 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NORTH J
DATE:	15 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court delivered by Driver FM on 12 November 2010. The federal magistrate dismissed the application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 3 August 2010. The decision of the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa. The dismissal was made pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) which provides that:

At a hearing of an application for an order to show cause the Court may:

(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application;

THE CLAIMS

2. The applicant is a citizen of India. He claimed that he was in fear of persecution if he were to return to India from Muslim extremists following his conversion to Christianity. He claimed that he was brought up in a very strict Muslim family environment, but became attracted to Christianity as a student. He claimed that he was attacked by members of the Student Islamic Movement of India as a result of his conversion to Christianity.

THE DECISION OF THE TRIBUNAL

3. The Tribunal rejected his application on the basis that it was not satisfied as to his credibility. It rejected the claim that the applicant came from a highly conservative and orthodox Muslim family and it also rejected his asserted conversion to Christianity. The Tribunal concluded that the applicant did not ever abandon Islam to embrace Christianity or that such conversion was ever imputed to him by others. It therefore did not accept that the applicant was ever harmed by Muslim extremists or was rejected by members of his local community for that reason or that he ever had cause for such fear.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

4. The applicant applied for a review of the decision of the Tribunal to the Federal Magistrates Court. His grounds are set out in [10] of the federal magistrate’s decision as follows:
   1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the majority of High Court in SAAP.
      
   2. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents.
      
5. The federal magistrate dealt with all of the propositions which emerged from these two grounds. He rejected the allegation that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act) on the grounds that the information which it was said the Tribunal failed to disclose was contained in documents provided by the applicant himself, and that this information was covered by the exceptions in the section.
6. The federal magistrate then rejected the allegation that the Tribunal had failed to engage in an active intellectual process when it dealt with the first information report, the letters from Kottapuram Jama-Ath Committee and the Muslim Students Federation relied upon by the appellant. The federal magistrate pointed out that an earlier Tribunal decision which originally determined the applicant’s application had been overturned for the reason that the Tribunal had failed to explain that the Tribunal regarded the documents presented as having been concocted by the applicant. The second Tribunal hearing directly raised with the applicant the issue of document fraud and the particular concerns the Tribunal had with the documents submitted by the applicant.
7. The federal magistrate concluded that there was no doubt that the Tribunal engaged in an active intellectual process in considering the applicant’s documents. He dealt with the first information report which was submitted by the applicant and concluded that the adverse conclusion drawn by the Tribunal was open to it on the material in relation to this report. As to the letters said to have been written by the Kottapuram Jama-Ath Committee and the Muslim Students Federation which bore English language letterheads, the Tribunal rejected the applicant’s explanation that those letterheads were used to support fundraising or other activities overseas. The federal magistrate determined that it was not unreasonable for the Tribunal to reject that explanation.
8. Then the federal magistrate dealt with an allegation that the Tribunal did not make inquiries in India about the applicant’s claims or documents. The federal magistrate concluded that the Tribunal was under no obligation to make such inquiries.

APPLICATION FOR LEAVE TO APPEAL

9. On 1 December 2010, the applicant filed an application for leave to appeal against the judgment of the Federal Magistrates Court. The single ground asserted in the draft notice of appeal annexed to the application for leave stated:

1. The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of Statutory Obligation.

10. The single ground of appeal now relied on was not raised before the federal magistrate. When the appellant was asked at the hearing of the application to explain what he intended by that ground of appeal the applicant raised two matters. The first matter was that the Tribunal was wrong to find that his evidence was untrue. He said that the Tribunal should not have found that he was not a credible witness. This is not a ground open to the applicant on a judicial review application. The fact-finding function is the function of the Tribunal and this submission does not point to any jurisdictional error committed by the Tribunal.
11. Second, the applicant raised the same allegations in relation to the first information report and the letters from the Kottapuram Jama-Ath Committee and the Muslim Students Federation which he had raised before the federal magistrate. No error was identified in the way the federal magistrate dealt with the Tribunal’s reasoning on those two documents. The federal magistrate determined that it was not unreasonable for the Tribunal to draw an adverse conclusion in respect of both these documents. The Tribunal relied on difficulties evident on the face of all of the documents, on independent country information indicating the ready availability of falsified or fraudulent documents in India, and by its concerns about the reliability of the applicant’s evidence. For these reasons the Tribunal was not satisfied that any weight could be placed on the documents. The federal magistrate was correct to conclude that these conclusions were open to the Tribunal and do not demonstrate jurisdictional error.
12. It follows that any appeal on either the ground raised in the notice of appeal or on the matters raised by the applicant in oral submissions would be bound to fail. That means that the applicant has not established that the judgment of the federal magistrate is attended with sufficient doubt that it should be revisited on appeal. The first requirement for the grant of leave to appeal in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 104 ALR 621, is not made out. In those circumstances leave to appeal should be refused
    

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 18 February 2011