SZDFX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1172

FEDERAL COURT OF AUSTRALIA

SZDFX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1172

SZDFX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 702 OF 2005

HILL J
1 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 702 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDFX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	1 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 702 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDFX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	1 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. The appellant appeals from a decision of a Federal Magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), not to grant to him a protection visa.  Although various matters appear to be covered in the grounds of appeal, the appellant pressed but two of them.

2. The first, which I might designate “the employment issue”, was an issue not originally raised before the learned Magistrate.  It involved no factual matter and was said to raise merely an issue of law.  The respondent, while accepting that there was no prejudice to the respondent to allow the fresh matter to be argued, noted that it was fundamental that issues be settled at trial, not left to be raised on an appeal.  Reference is made to Coulton v Holcombe (1986) 162 CLR 1 at 7. The Minister's opposition is, really, that the point had no merit and for that reason that leave should not be granted.

3. In the circumstances, I granted leave to allow the argument to be developed although, as will be seen, I think there is no merit in the argument.  The argument, if I understand it properly, is that the Tribunal made a jurisdictional error in failing to consider a case to the effect that the appellant was a person who fell within the definition of refugee in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (herein the "Convention") because he would suffer discrimination in employment amounting to persecution which constituted serious harm if he returned to India now or in the reasonably near future.

4. No doubt, if a person could show that that person had a well founded fear of persecution, such persecution being harm caused by discrimination in employment for one of the reasons set out in the Convention definition of “refugee”, that person would be a person to whom Australia had protection obligations and be entitled to an appropriate visa, subject to other relevant provisions in the Migration Regulations 1994 (Cth). No doubt, failure to consider a case made out will constitute jurisdictional error. As Gummow and Callinan JJ, with whose reasons Hayne J agreed, said in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389:

   “If the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts that will both involve a failure to afford procedural fairness and a constructive failure to exercise jurisdiction.”

5. That principle may even apply where, although the point is not expressly taken by an applicant in the Tribunal, the facts raised by the applicant make it sufficiently clear that the Tribunal will be under an obligation to consider those facts and failure so to do may constitute a constructive failure to exercise jurisdiction. Whether or not that latter qualification is correct need not be considered here because it is abundantly clear, both on authority in this court and in the High Court, that the Tribunal is not required to consider a case that is neither expressly raised nor arises clearly on the materials before it (see, in this Court, NABE and Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at 55 and in the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1).

6. Counsel for the appellant concedes that nothing appears in the claims made by the appellant in his application for a protection visa raising the point that he now submits the Tribunal should have considered.  It is unnecessary here to summarise the claims which appear in the papers, suffice to say that the appellant referred to the loss by destruction of his business.  He said that as a result, his life became miserable, the police did not assist him and when his business closed, he decided to leave the country to save his life.  Nothing in that statement suggests that he was either in fear or that it could objectively be said that as a member of BJP Party and a Hindu that he suffered a well-founded fear of persecution by someone in an area predominantly Hindu by virtue of discrimination in his employment.  I accordingly reject this new ground.

7. The second and only other issue raised on behalf of the appellant was that the Tribunal had made a jurisdictional error because it did not understand the basis of a claim made by the appellant that he was in danger from the "Muslim mafia" and therefore failed to investigate, using the discretionary power it has so to do, the existence of the Muslim Mafia.  In oral arguments some attempt was made to tie this in with an error in the name of the appellant in the Tribunal's reasons.  This argument was rejected by the learned Magistrate and in my opinion, correctly.

8. It is not unimportant to note that while the appellant was invited to attend the hearing of the Tribunal on 25 February 2004 in a letter that made clear to him that the Tribunal was unable to make a decision in his favour on the information he had supplied to that point, the appellant responded to the Tribunal indicating that he did not wish to attend a hearing and consented to the Tribunal proceeding to make a decision without any further allowance to him to appear before it.

9. It is true, as counsel for the appellant pointed out, that the Tribunal's reasons are sloppy, particularly in two places where the Tribunal member got the appellant's name wrong.  It added to his name in one place the name of “Patel”.  One can perhaps understand, though not justify, how this may occur.  However, my reading of the Tribunal's reasons makes it clear that the mistake in name is an immaterial matter.  It appears not to be the case that the Tribunal was not dealing with some other factual situation, were it so, clearly the decision would need to be set aside. 

10. There are other aspects of the Tribunal's reasons which I personally think are unsatisfactory.  The idea that what an applicant himself or herself says is not evidence but merely "uncorroborated assertion" is unacceptable.  Of course, what an applicant says on oath or in documents is evidence.  It does not follow that the Tribunal has to accept it but it is not, in my opinion, good enough for the Tribunal to indicate that there is no evidence at all merely because it does not ultimately accept what the applicant says.  This, however, is not a matter the subject of the appeal and I make no further comment about it.

11. What is clear for present purposes is that while the Tribunal does have power to conduct investigations to obtain additional evidence if it wishes to, the Act, as the learned Magistrate said quoting Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12,“does not impose any duty or obligation to do so.”

12. The Tribunal in its reasons did suggest that it had some difficulty in understanding what was meant by the words, "Muslim Mafia".  One can perhaps understand its difficulty at one level.  It's clear enough from the Tribunal's reasons that it understood this much, namely that the appellant was complaining of being persecuted by extremist Muslim groups and others that may not necessarily belong to a group.  Who the Mafia members were was something the appellant did not seek to expand on in his application.

13. Be that as it may, there was no jurisdictional error on the part of the Tribunal in the manner in which it failed to conduct investigations, as the appellant suggested it should have, to determine who the Muslim Mafia would be.  Just what the nature of that investigation would have been was not made clear in the course of submission, which itself perhaps illustrates the difficulty of making it.

14. In fact, the Tribunal's decision was a factual one.  It found the claim of the appellant vague and unsatisfactory.  It found also that it was quite inconsistent with country information and it is accepted by counsel for the appellant that it was open to the Tribunal to consider that information.

15. At the end of the day, the Tribunal member did not reach the state of satisfaction required to find for the appellant.  The learned Magistrate found no jurisdictional error, no error has been shown in the Magistrate's decision, and accordingly, I would dismiss the appeal, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate:

Dated:            23 August 2005

Counsel for the appellant:	A Kumar
Counsel for the respondent:	J Smith
Solicitor for the respondent:	Clayton Utz
Date of Hearing:	1 August 2005
Date of Judgment:	1 August 2005