SZJAR v Minister for Immigration and Citizenship

[2007] FCA 462

FEDERAL COURT OF AUSTRALIA

SZJAR v Minister for Immigration and Citizenship [2007] FCA 462

SZJAR v MINSTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2307 OF 2006

CONTI J
28 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2307 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJAR
Appellant

AND:

MINSTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	2 MARCH 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 appellant pay the first respondent’s costs of the proceedings.

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 2307 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJAR
Appellant

AND:

MINSTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	28 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of Federal Magistrate Scarlett delivered on 3 November 2006, whereby his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), handed down on 27 June 2006. The Tribunal affirmed the earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated), made on 15 February 2006 to refuse the appellant a Protection (Class XA) visa. The appellant is a citizen of India who arrived in Australia on 10 October 2005 on a temporary business visa.

   Appellant’s claims

2. The appellant claims to have a well-founded fear of persecution by reason of his religion and political opinion. The basis of that claim is summarised as follows:

   (i)the appellant owned a small cooking oil business; his customers were Hindu supporters of the Bharatiya Janatha Party (BJP), Rashtriya Sevang Sangh (RSS) and Vishva Hindu Parishad (VHP). When the appellant tried to recover outstanding money owed to him, his customers threatened him and his family, made false allegations against him and gave ‘a religious twist’ to their dealings with him and his family;

   (ii)the appellant was involved in welfare organisations, the Shamsul Islam Association and Baithul Mal. He produced documentary evidence from those organisations in support of his claims; and

   (iii)the appellant and his father were active members of the Dravida Munnetra Kazhagam (DMK), a minority Muslim party, the leader of which treated the appellant as a link with the minority Muslims.

3. On 1 May 2006, the appellant attended a hearing before the Tribunal. Subsequently, on 9 May 2006, the Tribunal sent to the appellant an invitation to comment on information that it considered to be the reason, or a part of the reason, for affirming the delegate’s decision, in accordance with s 424A of the Migration Act 1958 (Cth) (‘the Act’). The letter contained references to the following information:

   (i)at the Tribunal hearing, the appellant made new claims to the effect that in 2005 he was beaten by his customers and that he had reported the incidents with his customers to the police;

   (ii)at the Tribunal hearing the appellant made a new claim that he had tried to convert people to Islam, which others did not like;

   (iii)the independent country information indicated that the appellant would be able to receive adequate state protection, should he return to India; and

   (iv)‘… [the] Tribunal reiterates that it is possible that the Tribunal may not be satisfied that any documents that you provide contain truthful and/or accurate information. The Tribunal is of the view that it would not be difficult to obtain fraudulent documents in India’.

4. The appellant was advised that such information was relevant, as it raised doubts about the appellant’s credibility, and might indicate that the appellant was ‘making substantial new claims at the review stage in order to bring [his] claims within a Convention ground(s)...’.  

   Tribunal’s decision

5. On 27 June 2006 the Tribunal affirmed the delegate’s decision under review, finding as follows:

   (i)although the Tribunal accepted that the appellant was involved with welfare organisations, the appellant’s oral evidence ‘remained vague and essentially general’; the Tribunal was not satisfied that the appellant was threatened as a result of those activities;

   (ii)the Tribunal was not satisfied that the appellant suffered any harm as a result of his or his father’s activities with the DMK;

   (iii)the Tribunal was willing to accept that the appellant’s customers threatened him when asked for money; however the essential and significant reason for such conflict was not for reason of the appellant’s religion, or that the appellant suffered Convention-related serious harm as contemplated by the Act;

   (iv)the Tribunal rejected the appellant’s claim that he reported incidents to police, finding that the appellant had fabricated that claim to support a claim of inadequacy of state protection;

   (v)in consideration of the evidence as a whole, and given the Tribunal’s concerns about the appellant’s credibility, the Tribunal was not satisfied that the appellant was beaten in 2005, or that he tried to convert people to Islam; the Tribunal found that even if it was wrong, any serious harm suffered by the appellant was the result of a personal matter, not essentially and significantly related to a Convention ground;

   (vi)the Tribunal also considered whether the appellant was a member of a particular social group such as ‘Indian Muslim traders owed money or who owe money to Hindu suppliers’; the Tribunal was not satisfied that any harm suffered occurred for reason of his membership of a particular social group; and

   (vii)the Tribunal was satisfied that any harm suffered by the appellant was by non-state agents, and that the appellant would be able to obtain state protection that would accord with international standards.

   The Federal Magistrate’s decision

6. The proceedings below commenced in the Federal Magistrates Court by an application filed on 11 July 2006, which set out 11 grounds of review. On 3 November 2006, Federal Magistrate Scarlett gave judgment ex tempore at the conclusion of the hearing, dismissing the application with costs.

7. The grounds of review were addressed at [21] to [29] in his Honours reasons for judgment. Federal Magistrate Scarlett found at [30] to [32], as follows:

   ‘30.The Tribunal was not satisfied upon hearing the Applicant’s evidence, and reading the Applicant’s evidence, that the threats of harm to him made by suppliers or customers were convention related and the Tribunal rejected the Applicant’s claims on the basis of membership of a particular social group or membership of a religious minority. The Tribunal made certain findings adverse to the Applicant’s credibility arising from fresh claims on serious matters having been raised for the first time at the Tribunal. The Tribunal dealt with that by the s 424A letter raising those issues with the Applicant and giving him the opportunity to comment on those issues after the hearing. There was no breach of s 424A of the Migration Act. Indeed, it appears to be an appropriate use of that particular section.

   31.In short, I am not satisfied that any jurisdictional error has been made out. I read through the decision myself and I cannot discern any jurisdictional error not raised by the Applicant.  I am mindful of the fact that the Applicant is not legally represented, although he did elect to take part in the Refugee Review Tribunal panel legal advice scheme and although the Applicant confirmed at the hearing that he did not attend the interview with the barrister who had been assigned to provide him with legal advice.  That is regrettable, but that is a matter for the Applicant.

   32.As there is no jurisdictional error I am satisfied that the decision is a privative clause decision as defined in sub-section 474(2) of the Migration Act. As it is a privative clause decision it is final and conclusive and it is not subject to certiorari or mandamus or any other constitutional writ.’

   The Federal Court proceedings

8. The appellant filed a notice of appeal to the Federal Court from the judgment of Scarlett FM on 23 November 2006, which contained nine grounds of appeal. Pursuant to directions made on 12 December 2006, the appellant was ordered to file and serve written submissions no later than five working days before the hearing date.  No such written submissions were ever provided to the Federal Court.

9. The grounds set out in the appellant’s notice of appeal were numerous. However, generally speaking, they were discursive and merely provided comments or observations upon the Tribunal’s decision, rather than presenting any grounds which sought to identify jurisdictional error.  The convenient course is to attach the appellant’s grounds of appeal to these reasons by way of an annexure, and to address the Minister’s submissions on each ground seriatim as follows:

   (i)ground 1 merely stated that the Tribunal failed to recognise the appellant as a refugee;

   (ii)ground 2 merely repeated ground 1, although in a different form;

   (iii)there was no ground 3;

   (iv)ground 4 appeared to be a complaint that the Tribunal, having identified document fraud as being prevalent in the appellant’s country of origin, placed the appellant on notice in a letter issued under s 424A of the Act that any documents provided after the hearing may lead to the Tribunal not being satisfied that such documents contained truthful and/or accurate information. This observation was also made in the context of new and substantial claims raised at the hearing before the Tribunal for the first time. In issuing the notice to the appellant, the Tribunal was formalising in writing the concern expressed at the hearing that documents which were produced late and in support of claims which had not previously been made, may be viewed with suspicion. However, the comments expressed both at the hearing and in the notice did not disclose a closed mind to the issue, but rather the issue was being raised with the appellant so that he could be given an opportunity to deal with it in his response;

   (v)ground 5 referred back to the earlier grounds and asserted that there had been a denial of natural justice; however, for the reasons set out above in response to ground 4, the Minister submitted that there had been no denial of natural justice;

   (vi)the second ground 5 was an assertion that the Tribunal had failed to take seriously the appellant’s evidence about the BJP and RSS.  That was not a proper ground of review and, in the absence of any particulars, appeared to be an invitation for the Court to review the merits of the matter;

   (vii)ground 6 was an attack on a finding of fact by the Tribunal regarding state protection and, consequently, does not constitute a ground of appeal;

   (viii)there were no grounds numbered 7 or 8;

   (ix)ground 9 again appeared to be an attack on the Tribunal’s treatment of state protection and also the finding that any harm suffered by the appellant was not Convention related;

   (x)ground 10 was merely an observation on the reliance placed by the Tribunal on a piece of independent country information; the choice of such evidence was a matter for the Tribunal and could not of itself found a ground of appeal;

   (xi)ground 11 referred to photographs attached to the notice of appeal; it was not apparent that those photographs were placed before the Tribunal, and in any event, that ground sought merits review, a course of action not open to the appellant in these proceedings;

   (xii)in coming to its conclusion that the decision under review was to be affirmed, the Tribunal essentially found that any threats that were made by customers to the appellant were not Convention related and that any harm experienced by the appellant as a result of such threats was not sufficient to amount to persecution. In relation to the more serious claims made by the appellant during the hearing, those were essentially rejected on credibility grounds due to the fact that they were not raised by the appellant at an earlier stage; that concern was put into a notice issued under s 424A of the Act and the appellant had an opportunity both at the hearing and after the hearing to deal with the matter. Furthermore, the Tribunal was satisfied that if the appellant was subjected to threats by these persons, he would be able to access effective state protection;

   (xiii)to the extent that the grounds of appeal resembled the grounds of review set out in the application, the Minister submitted that the Federal Magistrate was correct to reject each of the grounds, as articulated at [21] to [29] of the reasons for judgment below.

   Accordingly the Minister submitted that the Federal Magistrate’s reasons for judgment did not disclose any error. I find force in those submissions made by the Minister.

10. The appellant was unrepresented at the hearing of the appeal, and did not provide any submissions in writing, notwithstanding that he had been of course directed so to do. The appellant was unable to add anything of relevant significance to the grounds of appeal, and understandably so at least in the light of his absence of legal qualification or training.  It is readily apparent, however, that there is no substance or viability otherwise in law in any of the appellant’s purported grounds of appeal.

11. In the result, the appeal must be dismissed with costs.  The title to the proceedings has been amended to reflect the Minister’s change of official designation. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        28 March 2007

Appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2007
Date of Judgment:	28 March 2007

ANNEXURE A

‘GROUNDS OF APPEAL: (Specify grounds of appeal)

1.The Refugee Review Tribunal has failed to see that the applicant satisfies the definition ‘refugee in Article 1A(2) of the Convention.  The Federal Magistrate has failed to consider this.

2.The Refugee Review Tribunal and the Federal Magistrate have failed to see that the applicant satisfies the four key elements to the Convention definition as stated by the Tribunal in page 3 of its decision.

4.The Tribunal erred in stating that “the Tribunal may not be satisfied that any documents that he intends to provide contain truthful and/or accurate information” (Page 9).  It is unfortunate that the Tribunal had concluded that the dcouemnts [sic] would not have truthful information, even before they are filed.  This shows the closed and pre determined mind of the Tribunal.  The Federal Magistraet [sic] should have allowed the cae [sic] on this point.

The applicant respectfully submits that there is no use in filing or giving any evidence to the Tribunal as Tribunal is one sided it is not prepared to listen to the woes of applicant.

5.For the facts mentioned above it is stated the applicant has been denied fair and proper trial and the principles of natural justice has been denied to him by the Tribunal.  The Federal Magistrate has overlooked it.

5.The Tribunal failed to take seriously about the activities of BJP and RSS.  The Tribunal had refused to hear to accept any real happenings but was always looking ways to dismiss the claim of the applicant.  The Federal Court also did not help nto helos [sic] did Court did.

6.The Tribunal and the Federal Court failed to see that the police refused to take his complaint.  Theyl [sic] failed to see that the applicant sought asylum as he could not get any kind of protection or help from any of the authorities.

9.The Tribunal states (Page 16) the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protet [sic] the applicant from persecution.  But the Tribunal has failed to apply this to applicant’s matter.  The applicant was not allowed by the police to register [sic] case against those who harmed him.  The Federal Court simply accepted this.

10.It is strange that the Tribunal has relied on a report from some other country of the year 2000, rather that the real facts stated by the applicant and the Federal Court did not consider this as a serious error.

11.Moreover the applicant is from a Christian minority institution in South India and the photos are attached in 1976 receiving the school captain and it is impossible to obtain fraud documents.  I strongly put down this with an iron hand.’