FEDERAL COURT OF AUSTRALIA

SZLTS v Minister for Immigration and Citizenship [2008] FCA 1828

SZLTS AND SZLTT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1300 of 2008

TAMBERLIN J

11 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

2.                  Costs are fixed in the sum of $2000.

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

1                     In this matter the appellant appears before me on an appeal from a judgment of Federal Magistrate Smith delivered on 4 August 2008.  The sole ground of appeal is that the Federal Magistrate failed to find the Tribunal’s decision breached section 424A of the Migration Act (Cth) 1958 (“the Act”), which constituted a jurisdictional error.  The only particular given was that there was adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose that information as required.

2                     The appellants are a husband and wife, the appellant wife making her claims as a member of the family unit of her husband (hereafter “the appellant”). The appellant wife did not appear in court.

3                     When the matter came on for hearing before me this morning the appellant appeared with the aid of an interpreter, but did not have any legal assistance.  Understandably perhaps, when asked to state what his case was, he was unable to articulate any relevant ground or advance the argument.  While I understand his position, unfortunately, in order to succeed, he must disclose some error in the decision of the Federal Magistrate which is the subject of the appeal.

4                     In relation to the sole ground of appeal, I am not persuaded that it has been made out because the material relied on was general country information and was not directed to the appellant or his family personally.

5                     The Tribunal, in a letter dated 23 August 2007, set out the relevant material in detail and sought the appellants’ comment thereon.  It also raised additional matters which it considered important and which it thought were indicative of problems in the appellants’ case.  I am therefore satisfied that section 424A was not breached in any way.  Looking at the findings and reasoning of the Tribunal, it is apparent that the reasons for judgment turned on the lack of credibility of the applicant.  There were strong adverse findings against his credibility and reasons given for those findings.

6                     It was accepted that the appellant had a scar on his leg, but the Tribunal did not accept that this was caused by injuries received from persons attempting to harm him for his political opinion. The Tribunal, for reasons which it gave, also did not accept that the appellant was threatened by telephone, that he was harmed on the leg by burning wood, that he was threatened with having his house burnt down, or that he went into hiding.  These are factual matters on which the appellant was disbelieved by the Tribunal, which was the trier of fact in this case.

7                     The country information that was relied on by the Tribunal was used to relevantly indicate the lack of danger of persecution in India for a Convention reason.  Included in these reasons is the statement that India is a long-standing and stable multi-party federal parliamentary democracy and that, although there is widespread corruption in India, especially in the police force, Indian citizens have the power to question officials and to expose the corruption.  The Tribunal was not satisfied that Hindus or members or supporters of the BJP, a political party, were singled out by corrupt police or authorities. Rather, the Tribunal found that there were reasonable measures available to protect the lives and safety of citizens of India, including an appropriate criminal law, and a reasonably effective and impartial police force and judicial system.

8                     Accordingly, the Tribunal was not satisfied that the appellants had a well-founded fear of Convention based persecution if returned to India.  I cannot detect any error of law or principle which goes to jurisdiction or otherwise in the decision of the Tribunal member, nor have I been directed to any error in the reasons for judgment of the Federal Magistrate below.  I note that in an earlier statement the appellant had referred to conduct by his migration agent adverse to his interests.  This matter was dealt with by Federal Magistrate who referred to the principles identified by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 and subsequent cases applying that principle.  In this case these principles do not assist the appellants and in any event they were not the subject of the notice of appeal.

9                     Accordingly, I am not persuaded that there has been any relevant error affecting the decision of either the Federal Magistrate or the Tribunal and I therefore dismiss the appeal with costs. I am satisfied that it is appropriate for the appellants to pay the first respondent’s costs fixed in the amount of $2000.

Associate:

Dated:         2 December 2008