SZIOM v Minister for Immigration and Citizenship

[2007] FCA 571

FEDERAL COURT OF AUSTRALIA

SZIOM v Minister for Immigration and Citizenship
[2007] FCA 571

SZIOM AND SZION v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2080 OF 2006

CONTI J
24 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2080 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOM
First Appellant

SZION
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	24 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The appeal be dismissed.

3.The appellants pay the first respondent’s costs of the proceedings amounting to $2,500.

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 2080 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOM
First Appellant

SZION
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	24 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Federal Magistrate Scarlett, handed down on 12 October 2006, which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 March 2006.  The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated), made on 27 October 2005, to refuse the grant of a protection visa to the appellant.

   The Tribunal’s Decision

2. On 10 August 2005 the appellants lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (as the Department was then named).  Their applications having been refused by the Minister’s delegate on 27 October 2005, they applied for administrative review of that decision by the Tribunal on 13 October 2005.

3. The appellants are a husband and wife who are citizens of India and are Hindu. They arrived in Australia on 11 July 2005.  In its decision, the Tribunal observed that only the appellant husband had made specific claims under the Refugees Convention and the appellant wife relied on her membership of his family.  The appellants claimed to the Tribunal that they had been persecuted by a group of Muslim fundamentalist terrorists known collectively as the Dawood Ibrahim group.  The context to and nature of their claims are appropriately summarised in the reasons for decision of Scarlett FM as set out in [3] to [11] of his reasons for judgment below, and need therefore not be repeated in these reasons.

4. In its decision, the Tribunal recorded that the appellants had applied to the Tribunal for administrative review of the delegate’s decision in advance of the same being actually made and handed down, and therefore before the delegate had refused to grant the visa applications of the appellants. In its consideration of whether there was jurisdiction to hear the matter, the Tribunal afforded a beneficial interpretation of s 412 of the Migration Act 1958 (Cth) (‘the Act’) and reg 4.31 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which respectively stipulated as follows:

   ‘412.    Application for review by the Refugee Review Tribunal

   (1)       An application for review of an RRT‑reviewable decision must:

   (a)       be made in the approved form; and

   (b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

   (c)       be accompanied by the prescribed fee (if any).

   ….

   4.31     Applications

   (1)For the purposes of paragraph 412 (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT‑reviewable decision to which the period applies must be given to the Tribunal.

   (2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:

   (a)in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day -- 7 working days (beginning with the first working day that occurs on or after that day); or

   (b)       in any other case -- 28 days.

   ….’

5. The Tribunal concluded that the timing of the application did not matter as long as all elements of a valid application had been made out or satisfied.  The Tribunal reasoned by analogy upon the footing of the decision of this Court (Gray J) in Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308. In that case, it was held that where the notification of a delegate’s decision is invalid there would be no notification of the decision in existence and therefore the time period for review of the delegate’s decision would not have commenced to run, and as a consequence, the Tribunal would have jurisdiction. The Tribunal found further that therefore the fact there had not been any notification of the decision would not be a bar upon the Tribunal to an acknowledgement of jurisdiction. The Tribunal found therefore that it had jurisdiction to hear the matter and proceeded to consider and determine the appellants’ claims.

6. Upon its consideration of the appellants’ claims, the Tribunal was satisfied and found that Hindus in India do not have a well-founded fear of ‘serious harm’ and systematic discriminatory conduct simply because of their religion.  The Tribunal accepted the account of the appellant husband that he was present at a Hindu temple in 1992 and was injured, consistently with country information.  The Tribunal further accepted that the first appellant’s mother was killed, but entertained doubts as to the claimed motives of the perpetrators.   The Tribunal also accepted that the appellant husband had received telephone threats in the years 1992 to 1993 in Mumbai and Delhi.  However, the Tribunal considered that the oral evidence of the appellant husband was unequivocally to the effect that he returned to his original home in 2003, and remained there until his departure in 2005 to Australia.  All that in the Tribunal’s view was inconsistent with any claim of serious harm. 

7. The Tribunal further found that there were no claims advanced by the appellant husband as to any incidents of harm during those intervening two years.  Consequently, the Tribunal was not satisfied there was a real chance of the appellant husband being seriously harmed by the Dawood Ibrahim gang or anyone else at the time the appellant husband departed from India.  The Tribunal observed that there was an absence of evidence to the effect that the situation in India had deteriorated since the appellants’ departure.  Consequently, the Tribunal was not satisfied the appellant husband was a person to whom Australia owed protection obligations, and therefore he was rightly refused a protection visa. The appellant wife was also refused a protection visa due to her claims being dependent on the claims of her husband.

   The appellate proceedings in the Federal Magistrates Court

8. On 4 April 2006, the appellants sought judicial review of the decision of the Tribunal in the Federal Magistrates Court.  Their application contained three grounds of appeal. Those grounds asserted in sequence that the Tribunal exceeded its jurisdiction due to its finding to the effect that, ‘…if anyone had been motivated to locate, threaten or harm [meaning the appellant husband] in this period, they had a real opportunity to do these things’; that the ‘Tribunal erred in law because of the finding that “no specific convention claims were made by or on behalf of the applicant wife” because the applicant depended on the principal applicant’; and that the ‘Tribunal failed to follow the criteria of a refugee described in Article 1A(2) of the 1951 UN Convention on the Status of Refugees and thereby made a constructive failure’ to exercise jurisdiction.

9. At the hearing on 12 October 2006, Scarlett FM granted leave to the appellants to file an amended application for review of the Tribunal’s decision, which raised two grounds, namely that the Tribunal decision lacked the required satisfaction in terms of s 91R of the Act with regard to ‘the real chance test’ of future persecution. The appellant submitted that the ‘Tribunal failed to assess the real danger the applicant had from the Dawood Ibrahim Gang when it accepted that the applicant was injured by this gang and his mother was killed by the gang during the communal troubles’. This was contended to be a jurisdictional error. The second ground of the amended application alleges that the Tribunal failed to assess the appellants’ claims in a ‘constructive and articulate’ manner, as required under s 415 of the Act, by failing to consider the motives of the perpetrators who had murdered the appellant husband’s mother. It was his Honour’s view that both the original and amended applications were required to be reviewed.

10. In relation to the first ground of the original application, the Federal Magistrate was of the opinion that there was no explanation given by the appellants as to how the factual finding referred to in that ground ‘could in some way take the form of a jurisdictional error’. The second ground was also said to fail because there was no evidence to show that the appellant husbands’ wife had any separate claim under the convention. In relation to the third ground, his Honour found that ‘the Tribunal’s description of the criteria to be applied when assessing a person’s claim to be a refugee, is unexceptionable’ and that there was no constructive failure to exercise jurisdiction. In considering the amended application, Scarlett FM found that the Tribunal had assessed the claims before it for consideration, including the claim whether there was any well-founded fear of persecution in the future, but that the Tribunal was not satisfied the appellants faced any real danger of persecution at the time of the Tribunal hearing. Any reference by the appellants to s 415 of the Act in the amended application was said not to bear any relationship to the grounds for review raised. His Honour observed that s 415(2)(a) of the Act allowed the Tribunal to affirm the delegate’s decision and held that the Tribunal had duly done so.

11. At hearing in the Federal Magistrates Court, the Minister also brought to the Court’s attention a possible reviewable error, namely that the appellants were not notified of the existence of the delegate’s decision prior to the filing of the application for review with the Tribunal. The Federal Magistrate considered the Tribunal’s reasons for why it was satisfied that it had jurisdiction and found no reason to derogate from the Tribunal’s finding as to satisfaction of each element of s 412 of the Act.

12. His Honour further considered that in the event that there was committed any jurisdictional error, he would have been satisfied that relief should be refused for the following reasons appearing at [41]-[42]):

    “…a finding that the Tribunal did not have jurisdiction to review the Delegate’s decision could only result if the matter was remitted to the Tribunal and the Tribunal found that it previously had no jurisdiction.  That would not avail the Applicant at all as indeed it has been submitted that that would be fatal to the Applicant’s application for a protection visa because there would be no review of the Delegate’s decision available.

    In other words, if the statutory law compels a particular outcome, discretionary relief may also be refused.”

13. However, that matter was not considered further as his Honour was not satisfied the Tribunal did not have jurisdiction under s 412 of the Act. The Federal Magistrate was unable to discern any jurisdictional error in the decision of the Tribunal and therefore dismissed the application for review.

    The appeal to the Federal Court

14. The notice of appeal to the Federal Court asserted similar grounds of appeal to those raised before the Federal Magistrate’s Court below by the amended application. The appellants contended thereby that the Federal Magistrate had erred in law by failing to accept the appellants’ contention that the Tribunal had lacked the required satisfaction under s 91R of the Act with regard to the ‘real chance’ test and that the findings were made without evidence. The appellants also contended that the Federal Magistrate had failed to consider the appellants’ arguments regarding the motivation for the murder of the appellant husband’s mother.

15. At the hearing of the appeal before me the appellant husband appeared alone in Court upon the basis that he would put the case on appeal on behalf of his wife as well as himself.  He explained, I should add politely, that he had assembled the notice of appeal with the assistance of ‘one of my friends’.  His case was advanced on the basis of the following circumstances, which I reproduce below from the transcript of the hearing of the appeal:

    (i)‘My mother was murdered in 1992.  Afterwards the people are chasing us and I have a fear of them.  That’s all your Honour’;

    (ii)‘I was telling the Federal Magistrate that there was a fear of my life so it meant I was hiding myself from 2000 to 2005’;

    (iii)‘Nobody was knowing where I was living and I requested, to the Federal Magistrate that there was a fear of my life’. 

    The appellant husband was unable to say anything in response to the Minister’s written submissions. 

16. Plainly the case advanced by the appellant did not expose the existence of any jurisdictional error in the findings of the Tribunal or in the reasons for judgment of the Federal Magistrate below.  The reasons for decision of Federal Magistrate Scarlett were plainly free from appealable error and in accordance with those reasons I dismiss the present appeal. 

17. There is nothing more of utility that I may usefully add.  The appeal must be dismissed.  The Minister’s assessment of costs of $2,500 was I think within reasonable limits. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        24 April 2007

Appellant appeared in person
Counsel for the First Respondent:	Mr B O’Donnell
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 March 2007
Date of Judgment:	24 April 2007