SZLUQ v Minister for Immigration and Citizenship [2010] FCA 99 (19 February 2010)

Last Updated: 1 March 2010

FEDERAL COURT OF AUSTRALIA

SZLUQ v Minister for Immigration and Citizenship [2010] FCA 99

Citation:		SZLUQ v Minister for Immigration and Citizenship [2010] FCA 99
Appeal from:		Application for leave to appeal: SZLUQ v Minister for Immigration & Anor [2009] FMCA 1047
Parties:		SZLUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1289 of 2009
Judge:		TRACEY J
Date of judgment:		19 February 2010
Legislation:		Federal Magistrates Court Rules 2001 (Cth), s 44.12(1)(a)
Cases cited:		Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, cited SZLUQ v Minister for Immigration & Anor [2009] FMCA 1047, affirmed
Date of hearing:	19 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Ms A Nanson
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1289 of 2009

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

JUDGE:	TRACEY J
DATE OF ORDER:	19 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be refused with 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1289 of 2009

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

JUDGE:	TRACEY J
DATE:	19 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a judgment of a Federal Magistrate delivered on 26 October 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 6 July 2009: see SZLUQ v Minister for Immigration & Anor [2009] FMCA 1047. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) not to grant a protection visa to the appellant.

BACKGROUND

2. The applicant is a citizen of the Philippines who arrived in Australia on 24 April 2007. On 8 June 2007 the applicant 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 29 June 2007. The applicant applied to the Tribunal for a review of that decision, and on 27 November 2007, the Tribunal affirmed the decision of the delegate. The applicant sought judicial review of this decision, and on 26 June 2008 the Federal Magistrates Court ordered by consent that the matter be remitted to the Tribunal. On 14 October 2008 the Tribunal, differently constituted, affirmed the decision of the delegate. The applicant sought judicial review of this decision, and on 16 January 2009 the Federal Magistrates Court ordered by consent that the matter be remitted to the Tribunal.
3. The applicant claimed to fear persecution for reason of his political opinion. The applicant claimed that Sonia Torres-Aquino (“Aquino”), the Mayor of his village and a part-owner of the company which employed him, and/or her associates, sought to harm him due to his political work for Aquino's rival, Alfred Corona (“Corona”), in the 2004 mayoral elections. The applicant claimed that he agreed to be Corona's political campaigner for elections to be held in 2007. Because of this, on two occasions in November 2006, armed men went to his house looking for him. The applicant's father reported the incidents to the police. The applicant feared that his family would be harmed. He claimed that the authorities would not protect him because of their contacts with Aquino.

REFUGEE REVIEW TRIBUNAL

4. The Tribunal accepted the applicant's history with regard to his place of residence and his employment and also the power and influence of the Aquino family. The Tribunal also accepted that the applicant's family was known to Corona and that the applicant's father was formerly a councillor and politically aligned with Corona. The Tribunal further accepted that the applicant might have supported Corona.
5. The Tribunal did not, however, accept that the applicant was a witness of truth and considered the evidence he gave to be vague, incongruous or muddled and inconsistent. The Tribunal found that the evidence of the only witness called by the applicant, Corona, was convincing on issues regarding his campaign and political practices, but otherwise found him unreliable in relation to evidence concerning to the applicant. The Tribunal gave no weight to the content of "blotter" reports which had been provided as evidence to support the claim that the applicant's family had sought police protection, as the descriptions in them of the applicant's role in Corona's campaign and his alleged activities, recorded in those reports, were inconsistent with evidence given by the applicant. The Tribunal also took into account in this respect its adverse view of the applicant's credibility.
6. The Tribunal was not satisfied that the applicant had a well founded fear of persecution, and affirmed the decision of the delegate not to grant the applicant a protection visa.

FEDERAL MAGISTRATES COURT

7. By application filed in the Federal Magistrates Court of Australia on 31 July 2009 the applicant sought judicial review of the Tribunal’s decision. The application contained five grounds. They read:
   • The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant was not witness of truth, being conclusion (sic) that was not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
   • The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
   • The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
   • The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
   • The [Tribunal] has failed to investigate applicant claims, specially the grounds of persecution, in Philippines. Therefore, the Tribunal decision dated 6 July 2009 was [affected] by actual bias constituting judicial error.
8. The Federal Magistrate held that these grounds failed to advance any arguable case of jurisdictional error, and dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

APPLICATION TO THIS COURT

9. The application for leave to appeal to this Court was filed on 13 November 2009. In a draft notice of appeal attached to an affidavit filed on the same date, the applicant raises the following grounds:

“2. The single Judge of the Federal Magistrate Court in his Honours (sic) judgment delivered on the 26 October 2009 failed to find error of law, jurisdictional error, procedurally (sic) fairness and relief under section 39B of the judiciary Act 1903.

3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.”

SUBMISSIONS OF THE APPLICANT

10. The applicant appeared in person at the hearing. He had the assistance of an interpreter.
11. The applicant relied on written submissions which had been filed on the eve of the hearing. Those submissions did not address the grounds contained in the draft notice of appeal. Three new grounds were raised only one of which had been agitated before the Federal Magistrate. The first ground relied on in the written submissions was that the Federal Magistrate had failed to accept that the applicant had been denied procedural fairness by the Tribunal. This, it was said, occurred because the Tribunal had not heard the applicant before making an adverse finding about his credit. The second ground alleged error by the Federal Magistrate when he failed to find that the Tribunal erred by accepting that the applicant had made plausible claims but not then considered the “residual question”: “What if I am wrong?” The third ground was that the Tribunal failed to comply with its obligations under s 424A of the Act. When asked to elaborate on some of these grounds the applicant was unable to assist the Court. Although he claimed to be author of the submissions he said that he had had the assistance of a “friend” who had suggested to him what he should write.
12. In oral submissions the applicant complained that the Tribunal had not accepted the evidence of Corona. He also referred to his concern for his safety being exacerbated by a massacre of a large number of people on one of the Philippine islands in November.

CONSIDERATION

13. The first of the grounds raised in the written submissions was considered by the Federal Magistrate. As the Federal Magistrate correctly held the Tribunal had given the applicant every opportunity to explain his circumstances. It had raised with him various apparent inconsistencies in the evidence and given him the opportunity to deal with those concerns. It was under no obligation to do more in order to ensure that he was provided with procedural fairness.
14. The second ground referred to in the written submissions was not argued before the Federal Magistrate. Had it been it would not have assisted the applicant. The Tribunal did not accept that the applicant had made plausible claims. It was not therefore under any obligation to ask the “What if I am wrong?” question.
15. The applicant did not suggest in the Court below that the Tribunal had failed to comply with its obligations under s 424A of the Act. He was not able to identify “information” which he said should have been drawn to his attention before the Tribunal made its decision. If the “information” to which he referred was the Tribunal’s concerns about the credibility of his claims, these concerns would not have constituted “information” for the purposes of s 424A.
16. The additional matters raised in the applicant’s oral submissions could not support an allegation of jurisdictional error.
17. None of the matters raised in the Federal Magistrates Court or, for the first time in this Court, suggested that the applicant had a viable case which would have warranted judicial interference with the Tribunal’s decision.

DISPOSITION

18. The principles to be applied in dealing with an application such as the present are laid down in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397. In my opinion the learned Magistrate’s decision is not attended with sufficient doubt as to warrant reconsideration by this Court. Indeed it was, in my view, correct.
19. The application for leave to appeal should be refused with costs.
    

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 19 February 2010