SZJDU v Minister for Immigration and Citizenship

[2008] FCA 276

FEDERAL COURT OF AUSTRALIA

SZJDU v Minister for Immigration & Citizenship [2008] FCA 276

SZJDU AND SZJDV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2127 OF 2007

JESSUP J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2127 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJDU
First Appellant

SZJDV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent.

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 2127 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJDU
First Appellant

SZJDV
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	19 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are appeals from a judgment of the Federal Magistrates Court of Australia given on 8 October 2007, by which applications for writs of certiorari, prohibition and mandamus directed to the Minister for Immigration and Citizenship (“the Minister”) and the Refugee Review Tribunal (“the Tribunal”) were dismissed.  The Tribunal had made a decision on 26 June 2006, which it handed down on 11 July 2006, to affirm an earlier decision of a delegate of the Minister not to grant the appellants Protection (Class XA) Visas under the Migration Act 1958 (Cth) (“the Act”).

2. The appellants are husband and wife from India who arrived in Australia on 17 November 2005.  The husband applied for a protection visa upon the ground of his fear of persecution.  The wife’s application was based upon her situation as a dependant of the husband.  She made her claim against the prospect that her husband’s application might be upheld, in which case she would claim to be entitled to a visa herself as a dependant.  She makes no separate claim to fear persecution in her own right. 

3. According to the decision of the Tribunal, in April 2006 it advised the appellants that it was unable to make a decision favourable to them on the papers. It invited them to give oral evidence and to present argument at a hearing to be held on 20 June 2006. The appellants did not attend that hearing, and the Tribunal proceeded to make a decision under the powers given to it by s 426A of the Act.

4. The appellant husband, to whom I shall refer as the appellant, made the following claims in his visa application (I take this from the record of the Tribunal’s decision which accurately summarises the contents of the application):

   ·    He escaped from India to escape poverty

   ·    He has been unable to find employment due to his low level of education.

   ·    He was unable to buy food, clothing, medicine, education or even clean drinking water. 

   ·    He will face a substantial debt when he returns to India because he took out a loan to pay for his passport and visa. 

   ·    He has attempted suicide on a number of occasions.

   The Tribunal held that the appellant did not claim to fear harm for a Convention-related reason.  The concerns which he expressed in his visa application (the only material upon which the Tribunal was able to rely) made no reference to race, religion, nationality, membership of a particular social group or political opinion.  According to the Tribunal, the appellant made it clear that he left India for financial reasons, and did not wish to return to India for financial reasons.  It held that his claims were unrelated to the Refugees Convention. 

5. In his application for constitutional writs in the Federal Magistrates Court, the appellant relied upon two grounds. The first was said to be a serious error made by the Tribunal in failing to consider the written claims of the appellants as they were made. In particular, the appellant contended in this ground that the Tribunal failed to consider that he and his wife belonged to a social group in India who suffered fear all the time at the hands of the rich and the powerful in that country. In the second ground, it was alleged that the Tribunal had failed to reach the required satisfaction under s 414 of the Act because it failed to consider that the appellant belonged to a particular social group, constituted by the poor and downtrodden social classes to which he belonged.

6. In his reasons for judgment, given on 8 October 2007, the Federal Magistrate referred to the first ground, and noted that fear at the hands of the rich and powerful was not expressed as a fear by the applicant in the written documentation which constituted and accompanied his protection visa application.  His Honour said fear of persecution at the hands of the rich and powerful was not a claim made to the Tribunal and that it was hardly fair to ask the Tribunal to come to a decision about a claim of which it had no notice.

7. In dealing with the second ground in the application, the Federal Magistrate noted that the appellant’s protection visa application made no reference whatsoever to any persecution of the appellant.  His Honour expressed the opinion that it was not sufficient simply to assert a state of disadvantage and then to propose that the appellant and others who were in that state constituted a particular social group defined by reference to their disadvantage.  His Honour was unable to accept that the Tribunal in any way misunderstood or misinterpreted the appellant’s claims.  In his Honour’s view, had a claim in relation to membership of a particular social group been made, it would undoubtedly have been dealt with. 

8. The substance of the two grounds of appeal relied upon by the appellant in this court, reflects the two grounds on which he relied in his initiating application in the Federal Magistrates Court.  That is to say, at the first level, it is now said that the Federal Magistrate “mis-considered” the first ground and it was reiterated that the Tribunal had failed to consider that the appellant belonged to a social group who suffered fear all the time in the hands of the rich and powerful.In the second ground in this court, there is a subtle, but perhaps important, adjustment made to the nature of the ground advanced in the Federal Magistrates Court in that the particular social group now referred to is the poor and downtrodden in India who are being persecuted by the rich and powerful in the country.  As so adjusted, it seems that the second ground does little more than to give expression to the first ground in a different way.

9. It will be apparent from what I have said that the proposition that the appellant belonged to a particular social group, related in some way to his own economic circumstances, was not part of the case which he put before the Tribunal.  The Tribunal had no reason to suspect that a claim of that nature was being made by the appellant.  From the information before the Tribunal, the appellant’s proposition was simply that he was in a condition of very considerable poverty in India, he was carrying a substantial debt and he would be economically disadvantaged to a considerable degree if he were obliged to return to India.  Neither an articulation nor any suggestion of a social group was made by the appellant to the Tribunal, and it is hardly surprising the Tribunal did not refer to any in its decision.  I agree with the Federal Magistrate that this was a very clear case in which the Tribunal had before it an application which had to be rejected because it simply did not invoke any of the bases for the grant of a protection visa by reference to the Convention.  The Tribunal made the necessary findings and came to the inevitable decision in a way which was entirely within jurisdiction.

10. In addressing me this morning, the appellant said nothing about any error which the Federal Magistrate made.  The function of this court is not to reconsider for itself whether the Tribunal may have either exceeded or failed to exercise its jurisdiction, but rather to consider whether the Federal Magistrate was in error in the way that he or she addressed that question.  The appellant said nothing today on the latter question and it is apparent, from a reading of the Federal Magistrate’s brief, but entirely adequate, reasons, that he disposed of the case before him without error.

11. Before concluding, I should say something about the Notice of Appeal filed by the appellant.  As I have indicated, the Notice of Appeal, with one minor exception, went no further than to reiterate the grounds which had been unsuccessful before the Federal Magistrate.  The Notice of Appeal was quite unsatisfactory in that it did not come to terms with the disposition of the case by the Magistrate or with the reasons which he gave.  The appellant told me this morning that he himself did not prepare the Notice of Appeal, that he had never read it and, that he did not know what was in it.  Those circumstances would, I must say, give one reason to suspect that the jurisdiction of this court may have been invoked cynically in the present case. 

12. I appreciate that the appellant is self-represented, but he appears not to have conducted the case entirely as a self-represented person.  What I mean by that is that it is manifest that the Notice of Appeal was drawn by someone else, and that no attempt was made on the part of the appellant, or possibly on the part of that other person, to equip the appellant with even a basic understanding of the requirements of this jurisdiction or of the necessary propositions which might at least have given him some reasonably arguable case on appeal.  As it was, the appellant was in the position of someone who had filed a visa protection application without any reference to the grounds upon which such a visa might be granted under the Convention, who had declined to appear before the Tribunal and to present his evidentiary and argumentative case and who came to court upon the strength of documents which he had not prepared, which he had not read and which he did not understand.  I shall not say anything more about these things, save that I regard the situation as quite unsatisfactory.  I suspect that there might be others than the appellant himself who should share responsibility for situations of this kind. 

13. For the above reasons, the appeal will be dismissed.

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

Associate:

Dated:        7 March 2008

Counsel for the Appellants:	The first appellant appeared in person and on behalf of the second appellant.
Counsel for the Respondent:	Ms Clegg
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008