SZEFR v Minister for Immigration and Citizenship

[2007] FCA 665

FEDERAL COURT OF AUSTRALIA

SZEFR v Minister for Immigration and Citizenship [2007] FCA 665

SZEFR AND SZEFS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
16 OF 2007

TRACEY J
8 MAY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 16 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEFR
First Appellant

SZEFS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE :	TRACEY J
DATE OF ORDER:	8 MAY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 16 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEFR
First Appellant

SZEFS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	8 MAY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate dated 20 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 3 November 2005: see [2006] FMCA 1889. The Tribunal had affirmed the decision of a delegate of the first respondent (“the delegate”) to refuse to grant a protection visa to the appellants.

2. The appellants are husband and wife.  They are citizens of India of the Hindu faith who arrived in Australia on 18 May 2003 and applied for protection visas on 10 June 2003.  Their application was refused by the delegate on 25 July 2003.

3. The Tribunal affirmed the delegate’s decision on 16 July 2004.  That decision was subsequently set aside by the Federal Magistrates Court and remitted to the Tribunal for further consideration.  The Tribunal, which was differently constituted, conducted a further hearing on 14 October 2005 which led to its decision that is the subject of the present appeal.

4. The appellants claimed to have a well-founded fear of persecution should they be forced to return to India. In particular, the first appellant claimed to fear persecution on account of his Hindu faith and his support of the Bharatiya Janata Party (“the BJP”). The appellants informed the Tribunal that they had been repeatedly threatened and harmed by Muslim extremists and were unable to obtain police protection in their home state.  Further, it was claimed by the first appellant that he had worked in the construction industry in India and had received threats of physical harm from owners of buildings that he had allegedly constructed after those structures had collapsed and deteriorated during an earthquake in the region.

5. The Tribunal did not accept that the first appellant was involved in the construction of buildings, finding that there had been inconsistent evidence presented in relation to his role in the construction industry.  In particular, the Tribunal noted, that, if the appellant had been blamed for the harm caused when buildings collapsed during the earthquake, it would have been expected that some sort of legal action would have been brought against him.  In any event, the Tribunal held that, even if the appellant was threatened in relation to the earthquake damage, this would not be persecution for a Convention – related reason.

6. The Tribunal also dismissed the appellants’ claims of persecution from Muslim extremists because of their religion and political opinion, stating that the veracity of this claim was linked to the statements relating to retaliative action arising from the alleged building collapses, a claim that the Tribunal had previously rejected. When examining the claims of persecution on religious grounds, the Tribunal noted that the appellants’ home region in India was of sufficient size and ethnic diversity to allow them to avoid persecution from Muslim extremists who, as the Tribunal stated, appeared to be in the minority in the region.

7. The appellants sought judicial review of the Tribunal’s second decision in the Federal Magistrates Court. They relied upon two grounds. The first was that the Tribunal had erred in holding that the first appellant was not persecuted for a Convention reason, claiming that, as a construction engineer, the first appellant was a member of “a particular social group” within the meaning of the Refugee Convention. Secondly, the appellants asserted that the Tribunal had failed to comply with s 424 of the Migration Act 1958 (“the Act”) in relation to income tax forms provided by them to the Tribunal.

8. The Federal Magistrate dismissed the application. In relation to the first appellant’s claim that he was in danger as a construction worker in India following the earthquake, his Honour doubted that construction workers constitute a particular social group that shares a fear of persecution, as there was nothing that distinguished construction workers from society at large. It was, however, not necessary for him to come to a concluded view on the point because the Tribunal had found that the first appellant had not been threatened because of any responsibility he may have borne for building collapses. In relation to the alleged breach of s 424 of the Act, the Federal Magistrate held that the Tribunal was not required to refer specifically to every item of evidence before it, and, while each item of evidence adduced by the first appellant was not referred to in the Tribunal’s decision, this did not mean that the Tribunal did not have regard to all documents before it. The Tribunal had said, in its reasons, that it had “considered the documents provided by the [appellant].”

9. During the proceeding before the Federal Magistrate, the appellants also claimed that the Tribunal hearing was unfair due to a perceived lack of capacity on the part of the duty interpreter and allegedly faulty video-conferencing facilities throughout the hearing.  The Federal Magistrate noted the lack of evidence to support these claims, and was not satisfied that this ground was sufficiently made out.

10. The appellants’ notice of appeal to this Court contained the following grounds:

    “1.The Honourable Federal Magistrates Court erred in interpreting the construction of s424A(3)(a) of the Migration Act 1958 (“the Act”).

    2.His Honour failed to determine that the purpose of s424A was not served at the event a consideration on s424A(3)(a) was given.

    3.The Honourable Court also erred in law determining that the Refugee Review Tribunal (“the Tribunal”) was in a breach of procedural fairness.

    4.His Honour failed to determine that the Tribunal failed to find that the claims made fell within the meaning of convention.

    5.His Honour erred in determining that the Tribunal made the decision in bad faith.

    6.His Honour failed to deal with the construction of s422B as per claimed by the applicant.

    7.Additional details will be provided later.”

    Some of the grounds (such as grounds three and five) attributed findings to the Court which it did not make.  Grounds one and two attribute error to the Federal Magistrate in relation to construction points with which he did not deal.  Most of the grounds relating to the Tribunal were not advanced before the Federal Magistrate.

11. The appellants appeared in person.  They had the assistance of an interpreter.  I invited them to elaborate on the various grounds on which they sought to rely.

12. They said that “a friend” had prepared the appeal notice on their instructions.  They did not appear to have a clear understanding of its contents.  They told me that the first appellant should be acknowledged as being a construction contractor.  They reiterated the claims that there was a problem with the electronic equipment linking them with the Tribunal during the hearing and with the translation of their submissions.  No complaint was made to the Tribunal about any deficiencies in the translation of their evidence and submissions.  No “additional details” were provided.

13. In my opinion the appellants have failed to demonstrate any error on the part of the Magistrate.  The appeal should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY .

Associate:

Dated:        8 May 2007

Appellants appeared in person
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 May 2007
Date of Judgment:	8 May 2007