FEDERAL COURT OF AUSTRALIA

SZKNA v Minister for Immigration and Citizenship [2007] FCA 1806  

SZKNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1257 OF 2007

NORTH  J

9 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1. The application before the court be treated as an application for leave to appeal against the judgment of Federal Magistrate Driver delivered on 18 June 2007.

2. Leave to appeal be refused. 

3. The applicant pay the first respondent’s costs of the application fixed at $900.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for leave to appeal against orders made by Federal Magistrate Driver on 18 June 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal signed on 28 February 2007.  The Tribunal affirmed a decision of the first respondent, the Minister for Immigration and Citizenship, not to grant the applicant a protection visa. 

2                     The applicant sought review of that decision in the Federal Magistrates Court through a show cause application filed on 13 April 2007 and an amended application.  The Minister submitted that the application be dismissed pursuant to r 44.12(1)(a) of the rules of the Federal Magistrate’s Court Rules 2001 (Cth) (the FMC Rules).  That rule relevantly provides that:

(1)       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; or

…

(2)               To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

3                     On 4 July 2007, the applicant filed a document entitled ‘Notice of Appeal’.  In response, the first respondent filed a notice of objection to competency on 12 July 2007.  The notice asserted that the applicant required leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), because the Federal Magistrate’s judgment was interlocutory and further asserted that the appellant had not sought or obtained leave to appeal. 

4                     At the hearing today the situation was explained to the applicant and he was invited to make an application for leave to appeal.  The applicant indicated that he wished to make such application.  The Minister did not object to the Court treating the proceeding today as such an application.

5                     In considering whether to grant leave to appeal, the Court must consider whether the decision is attended by sufficient doubt that it justifies consideration by the appeal court and whether substantial injustice would result if leave were refused: see Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397.  An important consideration in determining whether the decision is attended by such doubt as to warrant consideration by the appeal court is whether the applicant has a reasonable chance of success on appeal if his argument were accepted. 

6                     The applicant, who is a citizen of India, is a Muslim from Chennai.  The details of his claim are set out in the judgment of the Federal Magistrate at [3], and I incorporate that description in these reasons.  In summary, the applicant claimed that he had joined a number of Muslim organisations and was active in them both in India and later in Dubai where he lived for some years.  The Tribunal considered his claims of fear of persecution for reasons of religion and imputed political opinion.  The Tribunal heard oral evidence from the applicant and was concerned about a number of inconsistencies between his written statement and his evidence before the Tribunal.   

7                     The Tribunal found that he had provided insufficient information to support his claims of membership of the particular Muslim political and social organisations, both in India and Dubai.  It therefore rejected his contention that he had fled India to Dubai because of adverse interest of extremist groups in India.  The Tribunal determined that the applicant’s visits to his family in India on two occasions undermined his claim of a fear of persecution in India.  The Tribunal also, having rejected the applicant’s claims, determined that the applicant could relocate to other regions in India where Muslims formed a majority.

8                     The arguments which the applicant sought to raise before the Federal Magistrates Court were contained in the application for review, amended application and a written submission filed on 12 June 2007.  The Federal Magistrate described some of these documents as being in “template form”, some of the content of which seemed unrelated to the application.  His Honour noted that the amended application and submission suffered from a lack of particulars and a lack of factual connection with the Tribunal decision.  Despite these limitations, the Federal Magistrate analysed the contents of the documents, sought to distil the arguments from them and rejected all of the arguments save an argument concerning the question of relocation. 

9                     In relation to relocation the Federal Magistrate doubted whether the Tribunal’s decision was sustainable, but determined that the Tribunal had resolved the application on grounds other than relocation in any event.  The Federal Magistrate said at [12]:

… [T]here is no substance to any of the asserted jurisdictional errors, with one possible exception.  There was no denial of procedural fairness and the Tribunal considered all the applicant’s claims.  The Tribunal did not apply the wrong test by requiring independent evidence of any particular fact before it would accept it.  The Tribunal did not display bias and the Tribunal met its obligations under s 424A of the Migration Act. The Tribunal also applied s 91R of the Migration Act to the extent that it had any relevant application. The Tribunal applied article 1A(2) of the Convention to the extent that it was relevant.  There is no evidentiary basis to support the claim that the applicant’s case is the same as that in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.

10                  The notice of appeal, filed in the Court on 4 July 2007, which I will treat as a draft notice of appeal, asserted grounds of appeal as follows:

…

2.                        Single judge of the Federal Magistrate Court in his Honour’s judgment delivered on 18 June 2007 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act.  

3.                        The ground and relief is very much similar with recent High Court judgment Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).

4.                        Recent High Court judgment; Plaintiff S 157/2002 Commonwealth of Australia [2003] HCA 1.

11                  The first respondent correctly observed that these grounds were unparticularised.  In relation to the reference to Muin and Lie, the first respondent submitted that the Federal Magistrate dealt with the matter.  The Federal Magistrate found that there was no arguable case on this ground because there was no evidentiary basis asserted.  The unparticularised grounds follow a similar format to those dealt with by the Federal Magistrate and no error in the way in which he dealt with those grounds has been identified.  Further, I am not able to see that there was any error, let alone, jurisdictional error in the way that the Federal Magistrate dealt with the allegations of error of law, jurisdictional error or procedural fairness. 

12                  The applicant addressed short oral submissions to the Court at the hearing of the application.  He contended that the Tribunal was wrong in finding that he could relocate within India to another place in which Muslims formed the majority.  He said India was unlike Australia and problems of religious conflict can arise at any time, even though superficially, India seems like a nice place.  He pointed, by way of example, to recent problems in Gujarat.  As previously explained, any criticism in relation to the Tribunal’s finding concerning relocation cannot assist the applicant because the comments relating to relocation were not determinative of the application and were observations made after the Tribunal had rejected the claims of the applicant.

13                  The applicant gave a general explanation as to why he was unable to continue to live in India.  I explained to the applicant the specific role of the appellate court and that the appeal was not an occasion to revisit the merits of the underlying case.  Rather the applicant was obliged to identify jurisdictional error.  At this point the applicant explained that that the Tribunal had not given him sufficient time to speak and that the interpreter had rushed him.  This argument was not raised before the Federal Magistrate.  It is not supported by any evidence.  It would require leave to be raised for the first time on appeal and it would be inappropriate to grant such leave. 

14                  The applicant has failed to demonstrate that the judgment of the Federal Magistrate was attended by error.  It follows that the application for leave to appeal should be refused.

Associate:

Dated:         21 November 2007