SZQDU v Minister for Immigration and Citizenship [2011] FCA 1389 (9 December 2011)

Last Updated: 12 December 2011

FEDERAL COURT OF AUSTRALIA

SZQDU v Minister for Immigration and Citizenship [2011] FCA 1389

Citation:		SZQDU v Minister for Immigration and Citizenship [2011] FCA 1389
Appeal from:		SZQDU v Minister for Immigration and Citizenship [2011] FMCA 749
Parties:		SZQDU and SZQDV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1650 of 2011
Judge:		COWDROY J
Date of judgment:		9 December 2011
Catchwords:		MIGRATION – appeal from decision of a Federal Magistrate – whether leave should be granted to the appellants to raise grounds which were not relied upon before the Federal Magistrate – whether proposed grounds of appeal are meritorious – whether in the interests of justice to grant leave
Legislation:		Migration Act 1958 (Cth) ss 36(2)(a), 427(6)(b)
Cases cited:		Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39; (2009) 111 ALD 15 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 SZEQH v Minister for Immigration and Citizenship [2008] FCA 1474; (2008) 172 FCR 127 VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168
Date of hearing:	24 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Appellants:	First Appellant appeared in person and on behalf of the Second Appellant with the assistance of an interpreter
Solicitor for the First Respondent:	Mr Temby, Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1650 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE OF ORDER:	9 DECEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the costs of the first respondent.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1650 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE:	9 DECEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal filed on 26 September 2011, the appellants appeal from the decision of Barnes FM delivered on 7 September 2011. By such decision her Honour dismissed an application by the appellants for judicial review of a decision of the second respondent (‘the Tribunal’) dated 14 March 2011 which affirmed the decision of a delegate of the first Respondent (‘the Minister’) not to grant protection visas to the appellants.

BACKGROUND

2. The appellants were born in India and were married on 29 July 2007. They travelled to Australia holding Class TR Visitor visas and Indian passports. The first appellant claimed he had been persecuted in India as he was born into the Shia Imami Ismali Muslim sect which he claimed was a minority of the Muslim sect in India. The first appellant claimed that he was involved in ‘helping the poor and other disadvantaged people regardless of their religious background’ and that in consequence, several Sunni Muslims and other caste people converted ‘en masse’ to his faith.
3. The first appellant claimed that he was threatened by local Sunni Muslims and Hindu extremists because of his activities; that his house was ransacked; that he was beaten and that his wife was assaulted; that a large sign was erected condemning his activities; and that the names of the first appellant and of his father were placed on the notice. The first appellant claimed that the police took no action and that, because of the gravity of the situation, he was warned to leave the country by his fellow Ismali brothers. Accordingly the first appellant claimed he has a fear of persecution. The second appellant did not make a separate claim.
4. The appellants lodged applications for Protection (Class XA) visas on 18 August 2010. The appellants did not attend an interview before the Minister’s delegate scheduled on 11 October 2010. The appellants were contacted by telephone by the Minister’s delegate and asked the reason for their non-attendance. The first appellant stated that he had not received the registered letter giving him such notification. However, the Australia Post website indicated that the letter was at the post office awaiting collection.
5. Accordingly, the interview was rescheduled for 18 October 2010 which was attended by the first appellant. By letter dated 28 October 2010 the appellants were advised that their applications were rejected because they did not satisfy the relevant criteria for the grant of such visas.

THE TRIBUNAL

6. By Application for Review filed on 24 November 2010 the appellants sought a review of the delegate’s decision. Such application was acknowledged by the Tribunal on 25 November 2010 and an invitation was extended to the appellants on 10 January 2011 to attend an interview before the Tribunal on 25 February 2011. The appellants returned the Response to Hearing Invitation on 21 January 2011 and indicated that they would both attend. Both appellants attended the hearing on 25 February 2011.
7. The Tribunal noted that the appellants had travelled to New Zealand before visiting Australia but had not applied for protection in that country. The first appellant told the Tribunal that his uncle in New Zealand told him that it was difficult to apply for a protection visa in New Zealand and that ‘there were no train services and he could not go anywhere’. The first appellant claimed that his uncle ‘tortured’ him and that he had to leave his uncle’s house at midnight.
8. The Tribunal found that the first appellant was not a credible, truthful and reliable witness and that because of inconsistencies in his claims, the Tribunal did not accept that the first appellant’s father was a prominent Ismali who was involved in speaking out about Ismali Islam; nor that the appellant and his father were targeted by local Hindus by reason of their religion or for any other Convention reason. The Tribunal did not accept that there had been any home invasion of the appellants’ home as claimed nor that a signboard had been erected and did not accept that either the first or second appellant had been assaulted or harmed in any way. The Tribunal found that the appellant ‘shows a propensity to shift and tailor evidence in a manner which achieves his own purpose’. For these reasons, the Tribunal found that the criteria required as stated in s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) for a protection visa had not been satisfied and affirmed the decision of the delegate.

THE FEDERAL MAGISTRATES COURT

9. The appellants filed an application in the Federal Magistrates Court of Australia on 15 April 2011. The grounds of the application were that the Tribunal ‘cross-examine[d] me & my wife without our awareness’; ‘me and my wife took an oath from religious fear’; and that the Tribunal ‘didn’t allow me to interrupt between [sic] when interviewing my wife’.
10. Barnes FM considered such claims. As to the first claim, her Honour observed that the proceedings before the Tribunal are inquisitorial in nature: see Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39; (2009) 111 ALD 15 at [18]. As such the Tribunal was entitled to ask applicants questions to satisfy itself of the claims being made. Her Honour observed that the Tribunal had regard to inconsistencies in the claims of the first appellant and the second appellant and the Tribunal had put such specific inconsistencies to the first appellant. Accordingly, her Honour dismissed the first ground of application.
11. As to the second ground, her Honour observed that credibility was a matter for the Tribunal: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. Her Honour found no jurisdictional error in relation to the second ground of appeal.
12. As to the third ground, her Honour observed that there was nothing in the reasons of the Tribunal to support the first appellant’s claim that he attempted to interrupt while the Tribunal was taking evidence from his wife (the second appellant). Her Honour referred to s 427(6)(b) of the Act which provides that a person appearing before the Tribunal to give evidence is not entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence.
13. Her Honour observed that whilst the Tribunal had a discretion to permit cross-examination (SZEQH v Minister for Immigration and Citizenship [2008] FCA 1474; (2008) 172 FCR 127) there was no evidence in the hearing before the Tribunal that the first appellant sought to cross-examine or to interrupt while his wife was being questioned. Accordingly, her Honour found that there was no jurisdictional error in the conduct of the Tribunal hearing and dismissed the application for review.

THE APPEAL

14. By notice of appeal filed on 26 September 2011 in this Court the appellants appeal the Federal Magistrate’s decision. The ground relied upon is as follows:

Dint [sic] got enough time to produce documents regarding my claims in RRT.

15. Under the ‘orders sought’ portion of the notice of appeal the following words appear:

Re application to RRT for the application with supporting documents;
In application needs [sic] to add new born daughter.

16. An affidavit apparently sworn by the first appellant and filed on 26 September 2011 states, inter alia:

Did not got [sic] enough time
Re application to RRT

APPELLANTS’ SUBMISSIONS

17. The first appellant appeared at the hearing before this Court unrepresented but assisted by an interpreter. The first appellant claimed that the Tribunal did not provide him with sufficient time to produce documents and that research in his home country was required as witnesses existed who could assist his claims. The first appellant said that he was unsure whether he was able to produce new evidence before the Court and thought the Court would not accept such statements.

FINDINGS

18. The ground relied upon, namely that the appellants required more time, was not raised as a ground of appeal before the Federal Magistrate and accordingly leave is required to raise such ground on appeal. The appellant must establish that it is expedient in the interests of justice to allow such ground to be raised: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [163]- [164]. The Court is also required to consider the merits sought to be raised by the ground: see VAAC at [26]. Leave will only be granted in circumstances in which the Court is satisfied that the ground has merit.
19. In this appeal the claim that the appellant required more time must be considered against the following extract which appears in the Tribunal’s reasons at [83]-[84]:

He [the first appellant] was reminded that he was entitled to seek additional time to provide further information. The applicant stated that he wished to submit evidence and ‘proof’, particularly in relation to his wife’s defective memory. The Tribunal noted that he has had ample opportunity to provide additional evidence in support of his case since the lodgement of his application. The Tribunal also noted that it was reasonable to assume that he would be able to obtain documentation from India reasonably quickly by relying on electronic and telephone communication. The applicant was given until 4 March 2011 to submit further evidence. He agreed to provide his supporting evidence by that date.
On 4 March 2011, the applicant wrote to the Tribunal stating that he was unable to “receive additional documents for my benefit from India ...” He provided no explanation or reason for his inability to “receive” documents and did not request an extension of time. He stated that he and his wife are trustworthy and loyal. His wife is depressed and does not remember many incidents.

20. Based upon such statement, the claim of the first appellant that he was not provided with additional time or that he needed additional time to produce documents cannot be sustained.
21. The Court has considered the findings of the Federal Magistrate and can find no jurisdictional error in her Honour’s decision. Further, the Court notes that the Tribunal exhaustively investigated the appellants’ claims before concluding that their application did not justify the grant of protection visas. The Court is unable to find any error in the findings of the Tribunal.
22. Accordingly, the Court dismisses the appeal with costs.
    

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

Associate:

Dated: 9 December 2011