FEDERAL COURT OF AUSTRALIA

SZFKL v Minister for  Immigration & Multicultural & Indigenous Affairs [2005] FCA 931

SZFKL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 678 of 2005

MADGWICK J

20 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as a party to the proceedings.

2.                  The appeal be dismissed.

3.                  The appellant pay the respondent’s costs, assessed in the sum of $3,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Madgwick J:

1                     This is an appeal against a judgment of the Federal Magistrates Court.  Barnes FM dismissed an application seeking judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’).

2                     The appellant’s claim is that he is a member of a caste known as Chammars, who are confined to leather work and light manual work and are part of the people referred to as Untouchables or Dalits, and that he had been subjected to abuse by ‘higher’ caste Hindus in his village because he was a land owner.  His account was that people of a supposedly higher caste considered it inappropriate in their environment for land to be owned by a Dalit and he claims that he had been intimidated and harassed because he refused to sell his land.

3                     The Tribunal member accepted that people identified as of the Dalit caste may very well be subjected to serious harm which might amount to persecution within the meaning of the relevant Convention, but the appellant failed because the Tribunal did not accept that he was a member of the Dalit caste.  The Tribunal member gave reasons for this disbelief.  These reasons included: that the appellant had shown a propensity to change his evidence opportunistically;  that there was very great delay in raising a claim that his wife had been brutally raped and murdered, and that while the appellant was in Australia (he had arrived in 1999), he could not satisfactorily explain why his visa application, lodged in September 1999 and adopted by him at the commencement of the hearing, had indicated that he was a widower.

4                     The Tribunal also found that despite the intimidation to sell his land to neighbours at the price they were willing to pay, the appellant had succeeded in selling his land at a better price to a different person and, now that the land was sold, the Tribunal took the view that neither the neighbours nor the local police, who may have been involved in the intimidatory behaviour, would have any future interest in him.

5                     The grounds of judicial review stated in the application to the Federal Magistrates Court were that the Migration Act 1958 (Cth) (‘the Act’) had not been properly observed;  that the decision made involved an error of law;  that the Tribunal’s decision was otherwise contrary to the definition of ‘refugee’;  and that the Tribunal’s decision had been ‘made with a preset mind’.  Her Honour indicated that none of these grounds was made out and she further dealt with a number of oral submissions of a factual kind which the appellant urged upon her, finding no sign of jurisdictional error.  Among other things, the appellant had claimed that he was somehow frustrated in saying what he wanted to say to the Tribunal, but there was no evidentiary basis for that, nor was there any to justify the other complaints that he made.

6                     In the notice of appeal to this Court the grounds are said to be that the Tribunal’s decision involved jurisdictional error of law ‘involving an incorrect interpretation of the applicable law to the facts of the cases’;  that the Tribunal failed to take one of the relevant considerations into account;  that the Tribunal member refused to accept that the appellant has a well-founded fear of persecution;  and that the Tribunal did not consider the application ‘properly’.  Nothing has been shown to me to indicate that there was any substance in any of these complaints.

7                     Counsel for the Minister felt it appropriate to consider the correctness of the Federal Magistrate’s decision in the light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.  As Counsel points out, in this case the Tribunal’s finding relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing.  However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement.  Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal.  That is to say, s 424A of the Act would not apply because any possible information falls within the purview of subs (3)(b) as being information ‘that the applicant gave for the purpose of the application’. 

8                     This submission appears to me to be correct.

9                     As an entirely alternative ground, the Minister points to the very great delay by the appellant in seeking judicial review.  The decision of the Tribunal was delivered in December 2001 and it was not until January 2005, over three years later, that the appellant approached the Court.  As far as I can see, no explanation for this delay has been given and, were there otherwise any merit in the appeal, that long delay might well have a bearing on whether the Court should intervene.  As it is, I do not need to consider it further. 

10                  The appeal will be dismissed with costs, assessed in the sum of $3000.

Associate:

Dated:              7 July 2005