SZIER v Minister for Immigration - [2006] FMCA 1935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIER & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1935

MIGRATION – RRT decision – Indian claiming persecution by Muslim creditors and customers – Tribunal found no Convention harm – no jurisdictional error shown – medical incapacity at Tribunal hearing not established – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.414, 425, 474, 476

Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

First Applicant:

SZIER

Second Applicant:

SZIES

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2256 of 2006

Judgment of:

Smith FM

Hearing date:

5 December 2006

Delivered at:

Sydney

Delivered on:

5 December 2006

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2256 of 2006

SZIER

First Applicant

SZIES

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 15 August 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), seeking orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 June 2006 and handed down on 18 July 2006. The Tribunal affirmed the decision of a delegate made on 6 January 2006, refusing to grant a protection visa to the applicants. The applicants are a husband and wife, and I shall refer to them as the applicant husband and the applicant wife.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Its powers are confined by s.474, so that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for a protection visa or any other permission to stay in Australia.
The application to this Court was filed without identifying a legal representative, but it appears to me that the applicants were probably assisted by a solicitor, Mr Jayawardena. Mr Jayawardena appeared on behalf of the applicants at the first court date on 12 September 2006. The grounds of the application, to which I shall refer below, are also very characteristic of grounds drafted by Mr Jayawardena.
At the first court date, Mr Jayawardena undertook to provide the applicants with copies of the orders I made on that occasion. They allowed the applicants to file an amended application and any evidence relied upon by 27 October 2006, and listed the matter for a hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) on 7 November 2006. Mr Jayawardena subsequently forwarded to the Court a copy of a letter he sent to the applicants dated 12 September 2006, in which he enclosed a copy of the Court’s orders. He gave them legal advice, and indicated that he would not appear as their legal representative at the hearing. He offered to assist them in the preparation of an amended application and written submission, but it seems that his offer was not taken up, since no further documents have been filed by the applicants to explain their arguments, other than a document tendered at the hearing to which I shall refer.
Shortly prior to the appointed show cause hearing, the Court received a facsimile from the applicant husband stating that he had fallen down and had a problem with his leg, and could not attend. A certificate from Griffith Base Hospital said that the applicant was unfit for work for one week from 3 November 2006 due to “sprained left ankle”. I adjourned the hearing until 20 November 2006, and directed that the applicants be served with a copy of the order, and be informed that proper medical support would be needed for a further adjournment.
Shortly before 20 November 2006, the applicant husband sent to the Court a facsimile indicating that the problem with his leg was continuing and requesting more time. He attached a letter from a doctor in Griffith stating that the applicant husband: “has been unable to attend the court due to left ankle sprain on 03/11/06, still in pain and unable to walk more than 100 meter and unable to drive to Sydney from 14 Nov 2006 until 24 Nov 2006”. I again adjourned the hearing until today, which I appointed as a final hearing.
My orders indicated that the applicants could request a hearing by way of telephone connection. However, both applicants attended today in person, and the hearing proceeded without any request for a further adjournment until its closing moments. The applicant wife suffered no apparent nor claimed impediments to making submissions on behalf of herself and her husband, and most of the time the applicant husband appeared fully alert to what was happening. He made submissions in‑chief for himself. However, during his reply to the Minister’s submissions, he claimed that he was too weak to be able to say all that he wished to say. He requested a short adjournment, which I allowed over the lunch time break. After lunch, the applicant husband claimed that he was suffering tension and a headache and was unable to say more. He sought an adjournment to allow him to obtain more evidence and submissions. However, I was not satisfied that, in fact, he was suffering from any medical condition which prevented him from completing his submissions. I also considered that his wife was able adequately to put submissions on his behalf. I considered that he had more than enough time to prepare for today’s hearing and to present material in support of the grounds of review.
The applicants arrived in Australia in September 2005, and on 18 October 2005 they lodged an application for a protection visa without indicating any involvement of an agent. The application made claims by the applicant husband to fear persecution in India if he were required to return, and made no separate claims for refugee status by the applicant wife.
A brief typed insertion in the form explained that the applicant husband claimed to have lost a business which he was conducting in Mumbai. I shall not recite the full contents of the application since, as I shall explain, the applicants significantly departed from their original claims, when they attended the hearing before the Tribunal. Shortly, their visa application claimed that the applicant’s business had become “a target of thugs and I was asked for money to pay them. When I refused them to pay, I became the target of further attack and threats. The thugs broke the properties and detained my workers illegally. This happened sometime in August 2004. I then went to the police station and asked for protection. The authority did not respond to my request for help and instead asked for bribe”. It was claimed that the police became upset when the applicant refused to give a bribe, and that this “encouraged the thugs to carry on their aggressive activities and continue destruction on my properties”. The applicant had no place in India where he could live and run a business, and therefore decided to find a safe haven for himself and his children in Australia.
No supporting evidence was ever presented to the Department of Immigration, nor to the Tribunal on appeal. However, the Tribunal was impressed by the truthfulness of the applicant husband and wife, and accepted the version of their history which they gave to it when they attended a hearing on 11 May 2006.
On that occasion, the applicant husband appears to have behaved similarly to his behaviour at the end of the hearing before me. The Tribunal said:
At the beginning of the hearing the first named applicant told the Tribunal that he was unable to give evidence and wanted the second named applicant to give evidence about his refugee claims on his behalf. He said he was unable to give evidence because he had “too much pressure on [his] brain” and could not stand for very long. He said he did not know why he felt that way but he felt “discomfort” in his heart. Asked if he was suffering from a medical condition he said he did not know but had recently been hospitalised 2 or 3 times because he felt nervous and cold. He presented a medical certificate from the Mildura Base Hospital dated 24 April 2006 which stated that he was “suffering from medical condition” and would be unfit for his “daily occupation” from 24 April 2006 to 30 April 2006. He said he had decided to attend the hearing even though he was unwell and then go to Queensland to work. Asked how the medical certificate related to his ability to give evidence at the hearing given the hearing was taking place on 11 May 2006, the first named applicant stated that he was still not perfectly well, “things were pulling in” his brain and he had travelled all day the day before (to attend the hearing).
It appeared to the Tribunal that the first named applicant was dejected, weak and languid. The Tribunal thus proposed that either the hearing be postponed until he felt better or the second named applicant could give oral evidence on his behalf as he had requested in which case the Tribunal would then allow the applicants two weeks to listen to a tape recording of the hearing and make written submissions. After a short adjournment to allow the applicants to consider these options, they informed the Tribunal that they wanted to proceed with the second option proposed by the Tribunal. However, after the Tribunal commenced taking oral evidence from the second named applicant, the first named applicant interrupted a number of times to give evidence. Thus, in the end both applicants gave evidence and presented arguments at the hearing with the assistance of a Gujrati interpreter. At the end of the hearing the first named applicant said that despite giving oral evidence he still wanted further time to make written submissions. The Tribunal allowed the applicants a further two weeks to do so but no further submissions were received.
There is no evidence to cast any doubt upon the Tribunal’s narrative of what happened. The Tribunal’s records confirm that the applicants were physically given the tapes of the hearing at the end of the hearing, but a transcript of the tapes has not been tendered in evidence before me. The Tribunal’s narrative of the evidence taken from both of the applicants shows that, indeed, the applicant husband contributed to the presentation of their history to the Tribunal in a substantial way and without any apparent difficulty. The impression which I gained from the Tribunal’s description is that he was able sufficiently to participate in the hearing to present his case. It is also clear that his wife was fully able to speak on his behalf and to explain the family’s history. Moreover, the applicants have not disputed that they were allowed a reasonable opportunity after the hearing to present further material and submissions.
No evidence has been presented to this Court to establish that the applicant husband, in fact, was suffering from a medical incapacity which prevented him from participation in the hearing in a “meaningful” way. I therefore am not satisfied that the applicants have made out a ground of review presented by the applicants for the first time at the end of the hearing before me. This was typed on a piece of paper:
The Refugee Review Tribunal exceeded its jurisdiction in purporting to review the decision against our application for a Protection Visa as required by S.414 of the Migration Act 1958, in that it conducted the hearing when the applicant [husband] was clearly too unwell to properly give evidence before the tribunal.
It appears to me that this presents an argument which would imply in s.414 of the Migration Act an obligation such as was implied in s.425 of the Migration Act by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 (“SCAR”) at [33] (see also NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]). A recent judgment has raised some doubt about the authority of SCAR (see Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [212]). However, based upon my factual findings above I do not consider that I need to enter into that controversy. I reject the contention that the applicants have established that the applicant husband was: “clearly too unwell to properly give evidence before the tribunal”.
In its description of the hearing, the Tribunal set out how the applicants presented their true history before coming to Australia:
Asked what persecution the first named applicant would face if he returned to India, the second named applicant stated that her husband’s business had been going well for some time but then his competitors reduced their prices below his and as a result he lost all of his customers. He reduced his prices to try to win back his customers but then the competitors threatened him, made phone calls, came to the family home where they had a fight during which her husband’s father was injured and they even pushed the first named applicant out of a train. The competitors reduced their prices further and as a consequence of reducing his prices further her husband suffered a loss and his debt increased. He was unable to continue with the business. Her husband went to the police two or three times but the police wanted money which they could not afford and the police were no help. Eventually the competitors told the lab where her husband obtained materials that he had suffered great losses and could not meet his payments and thus the lab stopped supplying him with materials. Her husband owes debts to the lab for materials previously borrowed on credit and money owed to a friend who lent them money to come to Australia and money the friend pays towards their children’s education. Asked again what harm her husband would face in India, the second named applicant said that her husband was not well‑educated and so would not be able to get a very good job, he would not be able to do any other business beside the one he did. If he resumed his former business he would have the same problems.
The first named applicant told the Tribunal that he bought materials on credit from the lab and sold the materials on credit at a lower price and sometimes his competitors would intercept deliveries to his customers so they would not reach the customers. Asked what harm he feared if he returned to India, he said he owed money which he could not repay. He said he could live in peace in Australia, he can only work when his health permits and sometimes even his wife has to stay home from work with him when he is not well.
The Tribunal was clearly alive to the significant alteration of the claimed history from that which had been presented in the protection visa application, and asked the applicants to explain this. It said:
Asked to explain the variation between the claims, the second named applicant stated that they told the friend who helped them with the application their real story. Asked whether what was in the protection visa application or the oral evidence given at the hearing was true, she said what had been said at the hearing was true, it was not true that her husband had been the target of thugs, he was targeted by competitors who got the lab to harass him for money owed by her husband for goods he bought on credit. The first named applicant added that he had various suppliers and his competitors stopped his suppliers from providing materials because he could not pay and, as his customers did not pay him for goods he supplied them, he could not pay his suppliers.
The Tribunal also sought to clarify what was the true history claimed in relation to the applicants’ dealing with the police. It said:
The Tribunal noted that the first named applicant claimed in his protection visa application that he went to the police but they wanted a bribe from him before they would help him. The second named applicant stated that was correct.
The first named applicant confirmed the accuracy of the claim made in the protection visa application that he went to the police but they wanted a bribe from him before they would help him. He said that he went to the police two times. The first occasion was when cameras were stolen from his bag and the second time was after his competitors tried to force him from a train. He explained that on each occasion the police asked for proof of his claims which he could not provide then the police said they could harass the competitors if he paid them to do this but he did not want them to do this because he was concerned the competitors would then harass him even more.
The Tribunal then raised with the applicants how they claimed that the harms they had suffered and feared related to the Convention grounds of race, religion, nationality, membership of a particular social group or political opinion. It said:
The first named applicant [the husband] responded that the competitors were Hindu but the people who owed money to him and he owed money to were Muslim.
At the end of the hearing, the Tribunal recorded:
The second named applicant asked that she and her husband be allowed to remain in Australia a little longer even if her husband did not fall within the meaning of a refugee so they could work and repay their debts. The Tribunal explained it did not have the power to make such a decision. She then added that the lab people, suppliers and customers were all Muslims, and said they all wanted to “save” each other so the first named applicant got into trouble.
Under the heading “Findings and Reasons”, the Tribunal made general findings at the start of its discussion:
The applicants generally gave their oral evidence in a forthright manner. Their oral evidence about the applicant’s business in India and related problems was generally consistent and credible. Thus, the Tribunal accepts that the first named applicant had a photographic supply business in India, that after a period of success his competitors tried to undercut his prices and as a result of this and the fact that his customers did not pay him for goods they had purchased on credit, he could not pay debts he owed to various suppliers from whom he had purchased supplies on credit. When referring to suppliers the Tribunal includes the lab the first named applicant obtained materials from and owed money to. The Tribunal accepts that the competitors harassed the applicant in an attempt to undermine his business and informed the suppliers of his financial difficulties and as a result his suppliers demanded that he repay his debts.
The Tribunal then made a series of findings which explained why it did not accept that the applicant husband had a well‑founded fear of Convention‑related persecution in India.
First, the Tribunal found that because the business had now failed, “his competitors have achieved their apparent object of running him out of business and thus there would be no need for them to seek to harm him again. Therefore, the Tribunal finds that the first named applicant does not face any harm from his former competitors in the future”.

Secondly, assessing the applicants’ claim that the applicant husband would face unspecified problems as a result of still owing debts to suppliers, the Tribunal doubted whether the applicant would be unable to earn income to pay debts. It also said that it did not believe “that having debts and being unable to quickly repay them is serious harm amounting to persecution”.
Thirdly, the Tribunal said that, even if the owing of debts and ensuing problems did amount to serious harm, “the Tribunal finds that the harm is not persecution for a Convention reason”. It found that the mere fact that the creditors were Muslim was not sufficient to show that they would be “motivated to harm the first named applicant for reasons of religion”.
Fourthly, the Tribunal said that the fact that the applicant’s Muslim customers were not paying him “is not adequate to show that they failed to pay the first named applicant for reasons of religion”. It did not think that it was logical for the applicant to suggest that his suppliers and customers were colluding against him because they were Muslims. It found that “the customers would not harm the first named applicant in the future for a Convention reason”.
Fifthly, the Tribunal addressed a claim that the applicant owed money to a friend who had helped the applicants come to Australia. The Tribunal did not consider that this presented a Convention claim.
Sixthly, the Tribunal addressed the applicants’ claimed history of dealings with the police:
The Tribunal accepts that the first named applicant went to the police on two occasions, that he could not provide proof that his competitors were targeting him and that the police asked for a bribe to harass the competitors. The failure of the police to act due to a lack of evidence is not indicative of a failure to withhold protection for a Convention reason. The police cannot be expected to act without evidence of a crime. The fact that the police were prepared to act outside the limits of the law by harassing the competitors without evidence of a crime if the first named applicant paid a bribe indicates that they were corrupt but not that they refused to protect the first named applicant for a Convention reason. The first named applicant has not claimed that the police withheld protection from him for a Convention reason nor is there any evidence or material before the Tribunal to indicate that there is a real chance that the police would fail to protect the first named applicant in the reasonably foreseeable future for a Convention reason.
I have considered the procedures and reasoning of the Tribunal to decide whether the applicants have any arguable ground of jurisdictional error. As I have indicated above I do not consider that the procedures followed by the Tribunal, and in particular the opportunity it gave to the applicants to present their claims, reveals any jurisdictional error. I consider that the reasoning followed by the Tribunal was clearly open to it on the claims which were ultimately presented to it.
In short, the Tribunal found that the applicants were economic refugees, and not refugees for a reason covered by the Refugees Convention.
The application filed in this Court contains three grounds:
1.That the Tribunal exceeded its jurisdiction by its finding that – “first named Applicant has not claimed that the police withheld protection from him for a Convention reason”.
2.That the Tribunal erred in law by its finding – “nor is there any evidence or material before the Tribunal to indicate that there is a real chance that the police would fail to protect the first named Applicant”.
3.That the Tribunal acted unreasonably towards the Applicants by stating that both the 1st and 2nd named Applicants had not satisfied criteria set out in sec.36(2) and 36(2)(b).
No particulars are given to support the first ground, and it does not disclose its criticism of the finding which is identified. In my opinion, that finding was open to the Tribunal on the evidence, and does not reflect any misunderstanding of the definition of refugee, nor of the claims made by the applicants.
The second ground does not explain the error of law which is contended. The finding which is referred to is incompletely quoted from the Tribunal’s reasons, since in fact the Tribunal’s finding was that there was no evidence which in the Tribunal’s opinion indicated a real chance that the police would fail to protect the applicant husband in the reasonably foreseeable future “for a Convention reason”. I do not consider that this finding reveals any error of law.
The third ground does not indicate any explanation for the contention that the Tribunal’s ultimate conclusions in respect of each of the applicants was “unreasonable”. As I have indicated above, in my opinion the Tribunal’s conclusions were reasonably arrived at on the claims presented to it.
The oral submissions made by each of the applicants to me today were essentially that they thought that the husband’s health was “not good”, and that they wanted another opportunity to be able to present his case again to the Tribunal.
However, for the reasons I have indicated above, I do not consider that a sufficient factual basis has been made out to establish any jurisdictional error arising from the husband’s claimed ill health. On the evidence before me they were afforded a reasonable opportunity to present their case to the Tribunal, both at a hearing and otherwise. The Tribunal has believed their history, but found that it did not raise a Convention ground for fearing return to India.
I consider that the Tribunal’s decision was not affected by any jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 January 2007