SZJFE v Minister for Immigration and Citizenship

[2008] FCA 283

FEDERAL COURT OF AUSTRALIA

SZJFE v Minister for Immigration & Citizenship [2008] FCA 283

SZJFE AND SZJFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1958 OF 2007

JESSUP J
18 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1958 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJFE
First Appellant

SZJFF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	18 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent fixed in the sum of $1,600.

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 1958 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJFE
First Appellant

SZJFF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	18 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia, delivered on 10 September 2007, by which applications for writs of certiorari, mandamus and prohibition directed to the Minister for Immigration and Citizenship and to the Refugee Review Tribunal (“the Tribunal”), in relation to a decision of the Tribunal signed on 27 June 2006 and handed down on 18 July 2006, were dismissed.  In its decision, the Tribunal affirmed an earlier decision of a delegate of the respondent 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 who arrived in Australia on 9 July 2005. They are citizens of India. Only the first appellant, who is the husband, has made claims to be a refugee within the meaning of the Refugee Convention referred to in the Act. The claims of the second appellant, who is the first appellant’s wife, depend upon the success of those of the first appellant. She makes no separate claim to be a refugee, but would seek a visa upon the basis of being a dependant of the first appellant. She has not participated in the hearing of the appeal this morning, but I have been assured by the first appellant that she desires to be associated with the case which he has conducted on his own behalf, and is fully aware that the proceeding is taking place today.

3. The first appellant, to whom I shall refer as “the appellant”, was, it seems, a member of the Congress Party in India and had at least a certain level of activity within that party.   If he is obliged to return to India he claims to fear persecution at the hands of the members of the BJP party, and to hold that fear by reason of his political beliefs – namely, those involved in his membership of and his work for the Congress Party. 

4. The Tribunal was not satisfied that there was a real chance of the appellant being persecuted by reason of his political opinion should he return to India.  The Tribunal accepted that he may be a member of the Congress Party, and that other members of his family may be likewise.  However, it took the view that the appellant’s involvement in and commitment to the Congress Party was peripheral.  The Tribunal said in its decision that the appellant was vague, hesitant and equivocal about the platform of the Congress Party, about his involvement in the party and about the timing of elections with which he claimed to have assisted.  In his case before the Tribunal, the appellant had referred to certain incidents in his home state of Gujarat.  It seems that, at one point, according to his evidence before the Tribunal, those incidents involved the appellant being beaten with sticks by people who were ill-disposed towards him.  However, the Tribunal took the view that those incidents, including the beating to which I have referred, related to the appellant’s business transactions in connection with the sale of potatoes.  The Tribunal said:

   The Tribunal does not accept that the threats, court actions and theft of his cows were for the essential and significant reason of the Applicant’s political opinion.  Rather on the basis of the Applicant’s evidence at the hearing the Tribunal finds that these events were primarily and essentially a result of the Applicant’s business deals.

5. Having referred to the episode concerning the appellant being beaten with sticks, and the other episodes mentioned in the extract quoted above, the Tribunal said that the appellant did not provide it with incidents of harm that he claimed were perpetrated by members of the BJP, other than one occasion upon which his brother-in-law threatened to kill him.  It seems that his brother-in-law was a member of the BJP and objected to the appellant’s affiliation with the Congress Party.  As to that circumstance, the Tribunal found the appellant’s claim to be highly improbable.  It said that the appellant’s brothers and father were members of the Congress Party, and had not been killed by his brother-in- law.  The Tribunal noted that the appellant’s rejoinder to that was that he was more active than they were, but the Tribunal continued:

   However, as set out above, the Tribunal does not accept that the Applicant has had any more than a minor involvement in the Congress Party, such that it is implausible that the Applicant’s brother-in-law is seeking to kill him for reasons of his political opinion.

6. Before the Federal Magistrate, the appellant relied upon written submissions in support of two grounds upon which he sought the constitutional remedies to which I have referred.  The Federal Magistrate gave detailed, comprehensive and, apparently, careful attention to each of those grounds and to the submissions advanced in support of them.  Subject to what I propose to say subsequently, nothing which the appellant has put to me this morning would justify the conclusion that the Federal Magistrate made any error. 

7. The function of this court is not to give a disappointed litigant in the Federal Magistrates Court the opportunity to have another attempt at achieving a different result.  The primary jurisdiction to undertake judicial review of proceedings in the Tribunal is that of the Federal Magistrates Court, not of this court.  This court sits on appeal, and it would only disturb an order made by the Federal Magistrates Court if it were persuaded that the Federal Magistrate had been in error.  With that general introduction, I shall turn to the grounds of appeal referred to in the appellant’s notice, dated 28 September 2007.  The appellant supported those grounds with written submissions, but, as counsel for the Minister pointed out, those submissions are silent as to the errors made by, or indeed as to the reasons of, the Federal Magistrate.  They deal only with the decision of the Tribunal and appear to reflect the same case on the merits that the appellant ran before the Federal Magistrate. 

8. The first ground of appeal relates to the distinction between a fear of persecution by reason of a political opinion on the one hand and the difficulties, including at times the assaults, which were encountered by the appellant whilst he was in India and which the Tribunal held related more to his activities in the sale of potatoes than to his membership of or work for the Congress Party, on the other hand.  The ground asserts that the appellant had contended before the Federal Magistrate that it was actually his political involvement that placed his life in danger, rather than the debts which he owed to the potato farmers, and that the Tribunal was jurisdictionally in error in finding to the contrary.  It is alleged that the argument before the Magistrate was that the Tribunal failed to grant what was described as the appropriate “weightage” in its assessment of the appellant’s involvement in the Congress Party and in being a saviour of the Muslim minority during certain riots.  The ground continues:

   This lapse was the one the applicant was arguing as the Tribunal’s failure to consider the refugee claims in a “constructive and articulate” manner.  Hence this lapse amounted to a jurisdictional error.

9. What the appellant apparently means by, “the Tribunal’s failure to consider the refugee claims in a ‘constructive and articulate manner’”, is developed a little further in the written submissions upon which he relied this morning.  The appellant relied upon the judgment of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at 17 [55]:

   Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.

   Later in their judgment the Full Court said, at 20 [63]:

   It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

10. Following Dranichnikov as it did, what the Full Court was concerned to point out was that where the Tribunal had before it a substantial claim clearly articulated, and it failed to deal with that claim, whether overtly or by misunderstanding, then that failure might amount to a failure to exercise jurisdiction.  Neither the High Court in Dranichnikov, nor the Full Court in NABE was concerned to lay down the proposition that the Tribunal’s own reasons had to be expressed in a constructive and articulate manner.  I should say that one would normally expect the reasons to be so expressed and there is nothing in this case to give rise to the suspicion that they were not.  However, these are matters which are more in the realm of the niceties of expression, rather than of deficiencies of jurisdiction. 

11. I think that the appellant’s first ground of appeal is misconceived in its attempt to invoke the principle for which NABE stands.  Other than that, the ground appears to be concerned wholly with a complaint as to the weight which the Tribunal placed upon particular evidence, namely the evidence of the appellant’s political involvement with the Congress Party, and as such is to no extent concerned with a failure to exercise jurisdiction.  There is no substance in the suggestion that, in the way the Tribunal dealt with the distinction between the appellant’s trading activities on the one hand and his political opinion and activities on the other hand, it misunderstood the nature of his claims or failed to address them.  It disposed of them factually, which was a function four square within its jurisdiction. 

12. The next ground in the Notice of Appeal is that the Magistrate failed to address his mind to the appellant’s argument that the Tribunal overlooked evidence as to the physical injury suffered by the appellant as a result of being beaten with sticks by members of the BJP, as he alleged.  This ground also asserts that the Tribunal overlooked the physical injury of the husband.  It was submitted that the Tribunal did refer to the applicant husband being beaten by sticks.  However, the Tribunal found that the conflict arose because of his business venture which was a finding open to the Tribunal on the evidence.  Having read the Tribunal’s decision, I agree entirely with the Federal Magistrate’s assessment of the matter.  What is important for present purposes, however, is that the Federal Magistrate did not fail to address his mind to the point.  He did consider it, and dealt with it as set out above.

13. The next ground in the Notice of Appeal is that the Federal Magistrate failed to give consideration to so much of a ground of review which was before him as was constituted by the following statement:

    The Tribunal asked the Applicant what he meant by harassed. The Applicant stated that he required hospital treatment for three days after he was beaten by sticks in 2003, he stated that this was instigated by the BJP members.

    That quotation, although taken from the appellant’s grounds before the Federal Magistrate was in fact lifted from the Tribunal’s reasons of the Tribunal’s decision.  As appears from the nature of the quotation, it is set out in that part of the Tribunal’s decision which recounts the course of questions and answers addressed to and given by the appellant when he appeared before the Tribunal in support of his claim. 

14. The Notice of Appeal proceeds to assert that the Federal Magistrate failed to give proper consideration to the written submissions of the appellant relevantly to the effect that the Tribunal failed to assess the harm suffered by the appellant in terms of s 91R of the Act, but merely endorsed the error of the Tribunal, by saying that the finding was open to the Tribunal, rather than by exercising what were described as the Magistrate’s judicial review functions. The ground contends that the Federal Magistrate could not merely be satisfied by that conclusion, when the Tribunal had completely rejected the appellant’s active Congress Party involvement as a claim to be highly improbable. It is said that the findings of the Tribunal were procedurally unfair and highly unreasonable. I must confess to some difficulty understanding this ground, and the matter is not really taken any further in the submissions which were relied upon by the appellant. In my view, the reference to s 91R of the Act takes the argument nowhere as that section, important though it is, does no more than set out what is to be regarded as persecution for the purposes of the application of the convention. The Magistrate’s conclusion that the disposition of the appellant’s relevant claims by the Tribunal, including those which involved the assault which he experienced, was open to it on the evidence, was not only a conventional treatment of the case which was apparently conducted before him but, on my reading of the Tribunal’s decision, an entirely appropriate one.

15. All in all, I agree with the Magistrate that there is nothing in the decision of the Tribunal in the present case, which would provide any basis for the grant of the constitutional remedies which the appellant sought.  Nothing which has been put to me this morning, either in the grounds or in the written submissions, has persuaded me that the Magistrate was in error in any respect.  The appellant’s very brief oral submissions this morning went no further than to assert that he would be in danger if he were to return to India, and to raise a short matter of evidence which was not, it seems, before the Tribunal.  Neither of those submissions has been of any assistance in dealing with the question whether the Federal Magistrate was in error.  I propose therefore to dismiss the appeal.

I certify that the preceding fifteen (15) 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 Appellant:	The first appellant appeared in person and on behalf of the second appellant
Counsel for the Respondents:	Ms Kantaria
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	18 February 2008
Date of Judgment:	18 February 2008