FEDERAL COURT OF AUSTRALIA

SZLAH v Minister for Immigration and Citizenship [2007] FCA 1807

SZLAH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1781 OF 2007

NORTH  J

9 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal against the orders made by Federal Magistrate Driver on 15 August 2007 be refused;

2.                  The applicant pay the first respondent’s costs of the application fixed at $750.

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

NO QUESTION OF PRINCIPLE

REASONS FOR JUDGMENT

1                     Before the Court is an application for leave to appeal against orders made by Driver FM on 15 August 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal handed down on 14 June 2007.  That decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship, the first respondent, not to grant the applicant a protection visa. 

2                     The Federal Magistrate dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), which provides that the Federal Magistrates Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. 

3                     The claim made by the applicant before the Tribunal was that he feared persecution, based on his membership of a particular social group, namely low caste Hindus.  The applicant submitted a statement in support of his visa application in which he described discrimination against low caste Hindus in India, including in employment.  He claimed that he formed a social committee to uphold the rights of low caste Hindus, engaged in protest rallies and was assaulted as a result.  He also asserted that he was oppressed by many false cases brought against him and was beaten by Hindus of higher castes.  He said he was detained without lawful reason and persecuted many times.

4                     The applicant was invited to attend a hearing at the Tribunal on 12 June 2007 and declined that invitation.  The Tribunal proceeded to make a decision on the review and said at p5 of the decision record:

The applicant declined the invitation to a hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms.  The Tribunal was unable to explore with the applicant how, where, when and by whom he was discriminated against and persecuted, how, where, when and by whom his father was discriminated against and how that resulted in him having to close down his farm, how, where, when and by whom he and his colleagues in the social committee were humiliated and assaulted, how, when and in what circumstances he was involved in ‘false cases’, why and from whom his life is in danger, whether he had reported these events to the authorities and, if so, the outcome, whether he was able to seek and obtain the protection of the State, whether he was able to relocate to a safer place in India, what is likely to happen to him if he were return to India in the foreseeable future and the reason for the delay of over two years in lodging his Application for a Protection Visa.

5                     The applicant filed a show cause application, followed by an amended application and a number of other documents which set out the arguments which the applicant wished to raise before the Federal Magistrate.  These were described and dealt with by the Federal Magistrate at [6] and [7] of his reasons.  The Federal Magistrate observed that much of the argument appeared to address the merits of the Tribunal decision.  His Honour concluded at [8] as follows:

… The simple fact was that there was not enough before the Tribunal to permit it to make a favourable decision.  That difficulty is plainly reflected in the Tribunal decision.

6                     On 3 September 2007, the applicant filed an application for leave to appeal and attached a draft notice of appeal to the application.  The grounds of appeal there stated were as follows:

1.                  That the Learned Federal Magistrate simply dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrate Court Rules,  The RRT has totally ignored the requirements of s 91R and other sections of the Migration Act, as such as committed the Jurisdictional and legal errors.

2.                  That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not give any consideration, instead the appearance of the applicant was made the issue before the RRT, which in accordance with the law is not required.  The appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice.

3.                  That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the handbook of the UNHCR.  The real meanings were not taken into the consideration by the RRT & by the learned Court below.

7                     The applicant filed an affidavit in support of the application which sought to describe in greater detail some of the grounds of appeal.  The affidavit also restated some of the factual bases for the applicant’s claim for a protection visa.  The applicant appeared at the hearing of the appeal and was asked to explain the meaning of the grounds of the application.  He was unable to do so but simply asserted that he needed to stay in Australia and could not live in India.

8                     The questions before the Court on an application for leave to appeal are whether the decision of the Federal Magistrate is attended with sufficient doubt that it justifies the consideration by an 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.  It is not possible to distil from the generality of the grounds of appeal any basis for an allegation of error, let alone jurisdictional error, made by the Federal Magistrate.  The position is, as stated by the Federal Magistrate, that the applicant simply failed to provide sufficient detail of his claims to support the application for a visa which he made.  To the extent that the draft notice of appeal suggests that the Tribunal was not permitted as a matter of law to proceed in the absence of the applicant, this is answered by reference to s 426A(1).

9                     Consequently, the application for leave to appeal is refused

Associate:

Dated:         21 November 2007