BRGAD of 2009 v Minister for Immigration and Citizenship
[2010] FCA 1053
•27 September 2010
FEDERAL COURT OF AUSTRALIA
BRGAD of 2009 v Minister for Immigration and Citizenship [2010] FCA 1053
Citation: BRGAD of 2009 v Minister for Immigration and Citizenship [2010] FCA 1053 Appeal from: BRGAD & Anor v Minister for Immigration and Citizenship & Anor [2009] FMCA 1320 Parties: BRGAD OF 2009 and BRGAE OF 2009 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): QUD 259 of 2009 Judge: GREENWOOD J Date of judgment: 27 September 2010 Catchwords: MIGRATION – consideration of claims of jurisdictional error on the part of the Refugee Review Tribunal in failing to comply with ss 424, 424AA, 424A, 424B of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth), ss 65, 411, 412, 414, 424, 424A, 424AA, 424B, 474 Cases cited: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 - cited
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 - cited
Minister for Immigration and Citizenship and Multicultural Affairs; Ex parte Jia Legeng (2001) 205 CLR 507 - cited
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 - applied
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004 ) 206 ALR 471 - applied
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 - applied
MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483 - applied
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 - applied
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 - applied
MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1016 - appliedDate of hearing: 21 May 2010 Date of last submissions: 21 May 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Appellants: The Appellants appeared in person Counsel for the Respondents: Ms A Wheatley Solicitor for the Respondents: Clayton Utz Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 259 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BRGAD OF 2009
First AppellantBRGAE OF 2009
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
27 SEPTEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Leave to rely upon the ground of appeal to the Federal Court of Australia identified as the ground of appeal bearing the second number 2 in the notice of appeal filed 3 November 2009 and recited at [26] in the reasons for judgment in support of these orders is refused.
2.The appeal is dismissed.
3.The appellants pay the costs of and incidental to the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 259 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BRGAD OF 2009
First AppellantBRGAE OF 2009
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE:
27 SEPTEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Background
The appellants are husband and wife.
They arrived in Australia on 18 October 2008 as the holders of Tourist Visas (Subclass 676) issued on 19 September 2008. The appellants applied for Protection (Class XA) Visas under s 36 of the Migration Act 1958 (Cth) (“the Migration Act”) on the footing that the male appellant held a well‑founded fear of persecution should he return to the country of his nationality, India, as approximately six wealthy villagers to whom he owed large undischarged loan repayment obligations would harm him.
The female appellant sought a Protection Visa under the Act as a member of her husband’s family. The appellants contended before the Minister’s Delegate and the Refugee Review Tribunal that should they return to Veda in Gujarat State in India they each feared serious harm from those who wished to recover the loan monies. The loan was made to the male appellant in 2004 to enable his brother to go to the United States.
The male appellant contended that his fear was well‑founded and the reason for such fear engaged Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (as those terms are well understood as defined by the Act) because he would be persecuted, he contended, for reasons of recovery of the debt, which involved persecution by reason of his “membership of a particular social group”. Thus he claimed to be a refugee and a person to whom Australia owes protection obligations under the Refugees Convention and the Migration Act. His wife’s claim to be owed protection obligations under the Migration Act was a dependent claim which relied upon the Minister’s state of satisfaction as to the male appellant’s claim.
On 29 January 2009, the Minister’s Delegate refused each application for a Protection Visa.
On 19 February 2009, the appellants lodged an application for review of that decision before the Refugee Review Tribunal (“the Tribunal”). On 20 February 2009, the Tribunal wrote to the appellants acknowledging receipt of their application for review of the Delegate’s decision. A receipt of the application was enclosed with the letter. The letter advised the appellants to tell the Tribunal if their contact details changed or their personal circumstances changed. The appellants were provided with a case number for reference in exchanges with the Tribunal. The appellants were told, “if you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”. The appellants were also told that if they had any questions, they could contact the author of the letter at the nominated number or the Tribunal’s national inquiry line on the nominated number. The appellants were also advised that language assistance was available by contacting the Translating and Interpreting Service on the nominated number. The role and content of this letter became an important matter in the resolution of the challenge made by the appellants before the Federal Magistrates Court to the Tribunal’s decision and a matter relevant to the grounds of appeal to this Court.
On 12 March 2009, the Tribunal wrote to the appellants advising that it was unable to reach a decision favourable to the appellants on the information before it and invited the appellants to appear before the Tribunal and give evidence and present arguments relating to the issues in their case. A hearing date was nominated for 9.30am on 9 April 2009.
On 27 March 2009, the appellants sent a handwritten letter in English to the Tribunal advising that the male appellant was working at Mildura. The letter requested a change of venue for the hearing to relocate the hearing to Mildura.
On 3 April 2009, the Tribunal wrote to the appellants advising that the hearing on 9 April 2009 could not proceed. A new date for a hearing was nominated of 1 May 2009 at 1.00pm Victorian time at the Sunraysia Institute of TAFE at Mildura at the nominated address. The letter notified the appellants that arrangements had been made to conduct the hearing by video‑conference between Brisbane and Mildura. The Tribunal member and an interpreter skilled in the appellants’ native language, Gujarati, were in Brisbane.
On 20 April 2009, the appellants returned the “Response to Hearing Invitation” form to the Tribunal. The form is stamped as received in Sydney on 20 April 2009 then received in Brisbane on 21 April 2009. The form advised the Tribunal that the male appellant would participate in the hearing and an interpreter skilled in Gujarati would be required.
On 22 May 2009, the Tribunal affirmed the decision not to grant each applicant a Protection Visa under the Migration Act.
The Tribunal accepted for the purposes of its assessment that the male appellant had borrowed a large sum of money from six wealthy villagers in India in 2004 and that the money had not been repaid. The Tribunal accepted that the lenders wished to recover the money. Although the Tribunal expressed some reservations concerning the extent to which the male appellant feared serious harm from these lenders (having regard to the male appellant’s evidence that his two children remained living in his home village), the Tribunal assessed the claims of the appellants on the assumption that the lenders had sought to “beat him and his wife in the past and would wish to seriously harm them should they return to the village”. The Tribunal concluded that the evidence “clearly established” that the fear of harm arose out of an apprehension of criminal physical conduct relating to non‑payment of a debt and therefore the fear of persecution did not concern a Convention reason.
The Tribunal concluded that it could not be satisfied on the evidence before it that people in India who borrow money and do not repay it are members of a social group distinguished from society at large and thus the Tribunal could not be satisfied that the male appellant had a well‑founded fear of persecution for reasons of membership of a particular social group for the purposes of the Refugees Convention and the Migration Act. Rather, the male appellant feared persecution as an individual by reason of his failure to repay a substantial transactional debt to six wealthy Indian villagers who had in the past and would be likely to express, in the future, in particular ways harmful to the appellants, a desire to be repaid should the appellants return to India.
Judicial Review before the Federal Magistrates Court of Australia
The decision of the Tribunal arising out of a review under ss 411, 412 and 414, Migration Act of a decision under s 65 to refuse the grant of a Protection Visa is a “privative clause” decision: s 474, Migration Act. The appellants sought orders for the issue of the constitutional writs by way of supervisory judicial review before the Federal Magistrates Court of Australia (s 476, Migration Act) on the ground of jurisdictional error on the Tribunal’s part thus rendering the decision other than one “under this Act or [R]egulations[s] made under this Act” for the purposes of s 474 of the Migration Act: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.
The appellants contended for four grounds of jurisdictional error before the Federal Magistrates Court in the Tribunal’s exercise of the statutory review function. First, the Tribunal erred, it was said, by failing to give the appellants the “benefit of the doubt” in circumstances where the Tribunal entertained the possibility that the claims of the appellants were plausible. Secondly, the Tribunal failed to comply with s 424 of the Migration Act as it had invited the male appellant to give it additional information without specifying the way in which the additional information would be given or the time within which to give it, in contravention of s 424(3)(a) and s 424B of the Migration Act. Thirdly, the appellants contended that they satisfied what they described as the four key elements of the Convention definition of “refugee” and the Tribunal had failed to consider all elements of the definition. Fourthly, they said that since the Tribunal failed to investigate the appellants’ claims of feared persecution, the Tribunal decision was affected by actual bias in exercising the review function.
As to those grounds of challenge, the Federal Magistrates Court reached these conclusions.
As to the first ground, the question of whether an applicant ought to be given the benefit of the doubt about foundation facts going to a well‑founded fear of persecution for a Convention reason arises as a consideration when the Tribunal is uncertain as to an affirmative position on the evidence before it, whereas the Tribunal was affirmatively satisfied that persecution (which was assumed, for the purposes of the analysis of the claim, would be likely to occur) for reasons of non‑payment of a debt did not raise a Convention ground.
As to the second ground, the suggestion in the Tribunal’s letter of 20 February 2009 that the appellants ought to provide any material or written arguments in support of their claims (if minded to do so) to the Tribunal “as soon as possible” was simply a recommendation to action sooner rather than later if the appellants were minded to put material or written arguments before the Tribunal. The statement was contained in a letter acknowledging receipt of the review application and provided points of contact with the Tribunal and references to related services and further points of contact for those services.
As to the third ground, the Tribunal considered the factual contention said to give rise to the male appellant’s claim of a well‑founded fear of persecution for a Convention reason and found, on the facts, that a fear of reprisals for failure to repay a personal loan did not engage the key elements of the Convention definition of “refugee”.
As to the final ground of a failure to investigate (in breach of a contended duty to do so) the claim of feared persecution in India (by reason of actual bias on the part of the Tribunal), the Federal Magistrates Court concluded that no duty fell to the Tribunal to investigate or inquire into factual contentions concerning the basis of the contended persecution. There was no “critical fact” that might have been tested by an “obvious inquiry” (and determined one way or the other) to which the Tribunal closed its eyes giving rise to a “constructive failure” to exercise the jurisdiction. As to actual bias, the Federal Magistrates Court concluded that no evidence of a closed mind incapable of alteration was apparent on the face of the material. In approaching the legal tests to be applied in resolving those questions, the Federal Magistrate properly had regard to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] and Minister for Immigration and Citizenship and Multicultural Affairs; Ex parte Jia Legeng (2001) 205 CLR 507.
As to the process of reasoning adopted by the Federal Magistrates Court in deciding each of those four grounds of jurisdictional challenge to the Tribunal’s decision, the appellants rely upon two grounds of appeal to this Court. Both grounds contend for jurisdictional error on the part of the Tribunal rather than properly identifying contended errors in the process of reasoning on the part of the Federal Magistrates Court in disposing of the challenge before the Court below which might be corrected in the exercise of the appellate jurisdiction of this Court. It is not sufficient to say that the Federal Magistrates Court fell into error by failing to find jurisdictional error on the part of the Tribunal. An error of reasoning on the part of the Court below should be isolated and identified.
The first ground of appeal to this Court re‑agitates ground 2 of the challenge before the Federal Magistrates Court and the second ground of appeal raises a new matter.
As to the first ground of appeal based on a contended failure on the Tribunal’s part to comply with s 424(3)(a) and s 424B of the Migration Act, the position is this.
The Tribunal sent the appellants a letter of acknowledgement dated 20 February 2009 of the receipt of each appellant’s application for review of the Delegate’s refusal decision. The letter encouraged the appellants, if minded to put on material or arguments, to do so as soon as possible. The letter suggested and encouraged prompt action as a standing matter of desirable practice in enabling the Tribunal to embark upon its consideration of the claim of each appellant to an entitlement to a Protection Visa. The letter of 20 February 2009 was not an “invitation” to a person to give “additional information” for the purposes of s 424(2) of the Migration Act. The reference to “additional” information in s 424(2) suggests an appraisal of existing material by the Tribunal giving rise to an inquiry resulting in an invitation to a person to put forward something more, directed to a particular topic or issue. Section 424(3)(a) had no field of operation in the context of the Tribunal’s letter of 20 February 2009. There is no error on the part of the Federal Magistrates Court in its determination of that ground of challenge and there is no jurisdictional error on the part of the Tribunal in its treatment of the question. Since s 424 is not engaged, s 424B so far as it is dependent upon s 424, is not engaged. In Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 per Stone, Jacobson and Jagot JJ, the Full Court considered whether an acknowledgement letter constituted an “invitation” for the purposes of s 424(2). The letter, under the heading “What does the Tribunal expect me to do?” said “You should … immediately send us any documents, information or other evidence you want the Tribunal to consider”. The Full Court observed that in the context of a challenge to the decision of the Tribunal on the ground of jurisdictional error, the question was whether the Tribunal had the power to say what it said in the acknowledgement letter and whether the exercise of the power contravened any provision of the Act. Plainly enough, the Tribunal had the power to write the letter addressing the acknowledgement of the applications for review and indicate to each applicant steps that might be taken to ensure that the application for review was “complete” in the sense of providing for material each applicant wanted to put to the Tribunal as part of the review. Such a letter was described as “an administrative exercise preliminary to the review”. The Tribunal’s letter in the present proceeding was nothing more than an acknowledgement letter of the kind previously described.
The second ground raises an entirely new matter. The Minister contends that leave ought not to be granted to argue the new ground as it is without merit and no explanation has been given for failing to raise the matter before the Federal Magistrates Court.
However, having regard to the nature of the proceeding and the status of the appellants as unrepresented litigants assisted by a friend with Gujarati language skills (about which further observations are made later in these reasons), the merits of the point should be fully examined. The appellants frame the new ground in this way:
The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribed by the Act, in failing to comply with section 424AA(b)(iv) of the Act.
(a)His Honour failed to establish that the Tribunal and the Federal Magistrate Court made error in law and jurisdictional error in relation to relief under section 424A of the Migration Act.
(b)His Honour failed to find that the [T]ribunal did not consider UNHCR section 4, 5, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.
The appellants contend that the Tribunal failed to comply with s 424AA(b)(iv) of the Migration Act. Section 424AA is in these terms:
424AAInformation and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information
No oral or written submissions have been made by the appellants in support of the contended ground and the content of the ground has not been identified. Section 424AA contemplates a particular sequence of events. The Tribunal might elect to orally give an applicant appearing at a hearing before the Tribunal “clear particulars” of any “information” that the Tribunal considers would be the reason (in whole or in part) for affirming the decision under review and if it does so, it must ensure that four things happen. It must ensure, so far as is reasonably practicable, that the applicant understands why the information is relevant and the consequences of reliance upon it by the Tribunal. It must orally invite the applicant to comment on or respond to it. It must tell the applicant that he or she may seek more time to comment or respond and if the applicant seeks more time, the Tribunal must adjourn the review if it considers that the applicant reasonably needs more time to comment or respond.
Although there are no submissions directed to the contended facts engaging s 424AA(b)(iv), it can be assumed that the appellants necessarily contend that the Tribunal put to the male appellant at the hearing information which would form at least part of the reason for affirming the Delegate’s refusal decision and (apart from any matters directed to s 424AA(b)(i), (ii) or (iii)), the male appellant sought additional time to respond to whatever information was put to him and the Tribunal unreasonably refused to adjourn the review. However, there is nothing in the appeal papers or the discussion of the review or the examination of information or facts related to the review reflected in the Tribunal’s decision of 22 May 2009, to support an engagement of s 424AA. Moreover, the question of the Tribunal’s contended non‑compliance with s 424AA or, more particularly s 424AA(b)(iv), was not argued before the Federal Magistrates Court.
The new ground advanced before this Court also suggests that the Tribunal and the Federal Magistrates Court fell into error in relation to [relief under] s 424A of the Migration Act. Section 424A casts an obligation on the Tribunal to give an applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal must ensure, acting reasonably, that an applicant understands why the information is relevant and the consequences of reliance upon it, and invite the applicant to comment or respond to it: s 424(1). Section 424A does not apply to information that the applicant has given the Tribunal for the purposes of the application under review: s 424A(3)(b). The reference to “information” in s 424AA and s 424A does not encompass the Tribunal’s subjective appraisals, thought processes or determination. Nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 [24] per Finn and Stone JJ; SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483 at 492 at [29] per Heerey J; Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at 154 [25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. As the High Court observed in SZBYR at [18]:
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[emphasis added]
The transcript of the hearing before the Tribunal is not contained in the Appeal Book. However, the reasons of the Tribunal record matters put to the male appellant during the course of the hearing. At paras 47 and 48 of its decision, the Tribunal said this:
47.The Tribunal put to the applicant that it appeared that the claimed fear of harm to himself and his wife related to a purely personal matter and did not appear to be related to any of the five Convention grounds. It again spelt out for him the five Convention grounds. The Tribunal put to the applicant that he appeared to be fearing criminal demands for money or retribution of a criminal nature in relation to an unpaid debt. It put to him that it appeared from his claims that people were interested in him because of what he had done as an individual. The Tribunal explained to the applicant that, if the Tribunal were to find that the harm the applicant claimed to fear was not for one of the five Convention grounds, it might find that he and his wife were not refugees. The applicant stated that he wanted to come to live in Australia for two years. When the debt was over in India, he would return to India. He came to Australia because he did not have any other way. The Tribunal again put to the applicant that the harm he claimed to fear appeared not to be related to any of the five Convention grounds and again invited him to respond to this if he wished. The applicant reiterated that he had come to Australia because there was no other way. He asked to be allowed to live in Australia for two years. He stated that whatever he had said was true.
48.The Tribunal put to the applicant that it might also have to consider whether he and his wife would face a discriminatory denial of state protection for one of the five Convention grounds. It put to him that it appeared that he had not sought the protection of the authorities in the past or been denied protection. It put to him that his evidence suggested that he was worried about police corruption and people paying the police. The Tribunal put to him that it was willing to accept that there might be police corruption in India but this did not appear to amount to a discriminatory denial of state protection to him or his wife. The applicant stated that no one was going to listen to him in India without him giving money and he did not have it.
The matters put to the male appellant demonstrate that the Tribunal was testing and enquiring into the contention put by the appellants that the claimed fear of harm related purely to a personal matter concerning the unpaid debt rather than any one of the Convention grounds. The matters put to the male appellant concerned propositions that even if the Tribunal accepted the evidence of the appellants as to the reasons for persecution should they return to India, that evidence taken at its highest could not amount to a Convention ground. As the High Court observed in SZBYR at [18], “if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’”.
Accordingly, the propositions put to the male appellant did not constitute “information” for the purposes of s 424AA or s 424A. There is nothing in the material examined with an eye to postulating the assumed contention of the unrepresented litigant that raises any suggestion of a failure by the Tribunal to discharge an obligation arising under either s 424AA(b)(iv) or s 424A of the Migration Act as neither section is engaged in the circumstances of the case.
Having regard to these considerations, leave is refused in relation to the matters reliant upon s 424AA and s 424A.
The proposed new ground raises a further matter concerning what is described as “UNHCR sections 4, 5, 9 and 10”.
It is not at all clear what this description means. The appellants have not provided any particulars of this ground and no oral or written submissions have been made to support it. Counsel for the Minister provided the Court with extracts from the “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees” (HCR/IP/4/Eng/REV.1) published by the Office of the United Nations High Commissioner for Refugees in 1979 and republished in re‑edited form in January 1992 (the “Handbook”). The Handbook contains two parts, of which the first part contains six chapters. The Handbook contains 223 paragraphs and six annexures.
The sections described by the appellants in the way noted above cannot be a reference to paragraphs of the Handbook as the particular numbers concern introductory paragraphs in the Handbook. Paragraphs I to VII appear in the Foreword and paras 1 to 27 appear in the Introduction. The operative or substantive paragraphs of the Handbook do not commence until para 28. Nor could the numbers referred to by the appellants be a reference to articles in the 1951 Convention Relating to the Status of Refugees. Articles 4, 5, 9 and 10 of the Convention are headed, respectively, “Religion”, “Rights granted apart from this Convention”, “Provisional measures” and “Continuity of residence”. The appellants’ claim does not relate to any of these articles. Nor could the reference be a reference to articles in the 1967 Protocol Relating to Refugees. Articles 4, 5, 9 and 10 of that Protocol are headed, respectively, “Settlement of disputes”, “Accession”, “Denunciation” and “Notifications by the Secretary‑General of the United Nations”. These matters are not relevant to the claim of the appellants. Nor could the section numbers be a reference to sections in the Migration Act.
The appellants were not able to support the contention or give content to it either orally or in writing.
The final matter raised by the appellants by the new ground is a contention that the Tribunal did not consider the notion of “cruelty against humanity” and in failing to do so engaged in jurisdictional error. The appellants have not provided any oral or written submissions in support of the contention and no content is given to the proposition. It may be that the appellants have in mind the notion of “crimes against humanity” which is defined by Article 7(1) of the Rome Statute of the International Criminal Court ratified by Australia on 1 July 2002, in these terms:
Article 7
Crimes against humanity
1.For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a)Murder;
(b)Extermination;
(c)Enslavement;
(d)Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
(h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Article 7(2) provides further definitions of particular expressions in Article 7(1).
It may be in a particular case that the form of harm or persecution an applicant fears should he or she return to his or her country of nationality falls within the description “crimes against humanity”. However, the question to be addressed by the Tribunal’s review of the Delegate’s rejection decision is whether the appellants hold a well‑founded fear of persecution for a Convention reason. In this case, the Tribunal accepted, for the purposes of the analysis of the claim, that the male appellant had borrowed a large amount of money from six wealthy villagers in Gujarat State in India in 2004 and had failed to repay that debt. The Tribunal also accepted (with some reservation) for the purposes of the analysis of the claim, that each appellant feared persecution from the lenders in respect of that debt should they return to India. The Tribunal was affirmatively satisfied that those matters did not give rise to a well‑founded fear of persecution for a Convention reason.
The appellants did not contend that they feared persecution for reasons of race, religion, nationality or the political opinions they held. The Tribunal considered however whether feared persecution in the recovery of the unpaid debt or punishment for non‑payment of the debt might properly be regarded as persecution of the appellants as members of a particular social group: Tribunal’s reasons [55]. The Tribunal found that people in India who borrow money and do not repay it are not members of a “particular social group” distinguished from society at large: Tribunal’s reasons [56]. Claims of a well‑founded fear of persecution based on a transactional failure by an individual to pay a debt due does not elevate, without more, persecution for that reason to persecution of members of a particular social group. The Federal Magistrates Court was satisfied that the Tribunal by reaching such a finding had not engaged in jurisdictional error. There is no error on the part of the Federal Magistrates Court concerning its analysis of that matter. The Tribunal did not engage in jurisdictional error in reaching its finding.
The new matter raised by the second ground of appeal has, therefore, no merit and leave to rely upon the new ground is refused: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] to [48] per Kiefel, Weinberg and Stone JJ; MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1016 at [15].
The male appellant was assisted before the Tribunal at the hearing by an interpreter skilled in the Gujarati language. The appellants and particularly the male appellant was assisted before the Federal Court in the conduct of the appeal by a friend, Mr Chindan Patel. Mr Patel said that he had been living with the appellants for approximately three months and wished to assist the appellants in the proceeding. Mr Patel said that he understood the language of the appellants, could speak to and with the appellants and was in a position to assist them. Mr Patel’s English skills seemed to be sound and he seemed to be capable of explaining questions from the Bench to the appellants and providing a response.
Mr Patel seems to have been assisting the appellants for some time. On 7 May 2010, a Mr Patel on behalf of the appellants telephoned the Victorian Registry of the Federal Court and requested that the appeal be heard in Kununurra or alternatively that the hearing of the appeal be adjourned due to the work commitments of the male appellant. That telephone call was transferred to my Associate. Neither request was granted and arrangements were made for the appellants to appear by video‑link from Kununurra to Brisbane on the date set down for the hearing. On 19 May 2010, two days before the hearing, my Associate received a telephone call from Mr Patel on behalf of the appellants informing the Court that the male appellant no longer had work commitments in Kununurra and was therefore in a position to travel to Brisbane for the hearing. Accordingly, the video‑link arrangements were cancelled. At the hearing, the male appellant was assisted by Mr Chindan Patel who appeared to be the same person who had made the earlier telephone calls.
In the course of questioning from the Bench, the male appellant was asked to identify what information had been sought from him by the Tribunal upon which he was relying in support of his claims of jurisdiction error by the Tribunal. The male appellant, through the interpreter, said that the information was the names of the persons to whom he owed the money. The male appellant accepted that he would have been in a position to say those names immediately. No other information was relied upon by the appellants. The appellants were asked to identify whether there was anything further they might wish to put to the Court, through Mr Patel, and no submissions were put.
No error has been demonstrated on the part of the Federal Magistrates Court. No jurisdictional error has been demonstrated on the part of the Tribunal. Leave will be refused to rely upon the ground of appeal which bears the second number 2 and is recited at [26] of these reasons. The appeal is dismissed with an order that the appellants pay the costs of and incidental to the appeal.
I certify that the preceding forty‑seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 27 September 2010
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