SZJIK v Minister for Immigration and Citizenship

[2007] FCA 738

FEDERAL COURT OF AUSTRALIA

SZJIK v Minister for Immigration and Citizenship [2007] FCA 738

SZJIK and SZJIL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 24 OF 2007

RYAN J
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 24 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIK
First Applicant

SZJIL
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The Refugee Review Tribunal be joined as the second respondent.

2.The name of the first respondent be amended to Minister for Immigration and Citizenship.

3.        The applicants’ application be refused.

4.        The applicants pay the first respondent’s costs, to be taxed in default of agreement.

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 24 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIK
First Applicant

SZJIL
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	15 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court a purported notice of appeal from orders of Smith FM which were pronounced on 19 December 2006 when dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The second applicant had also made an application for refugee status but her claim can be taken to rely entirely on the first applicant’s claims.

   The factual background

2. The first and second applicants are husband and wife and are citizens of India.  They arrived in Australia on 4 February 2006 and applied for protection visas on 17 March 2006.  On 28 March 2006 a delegate of the Minister for Immigration and Multicultural Affairs, as she was then called (“the Minister”), refused to grant either applicant a protection visa.  The applicants subsequently applied on 20 April 2006 to the Tribunal for a review of that refusal.  I shall hereafter refer to the first applicant as “the applicant.

3. The applicant gave oral evidence at a hearing before the Tribunal on 6 July 2006 and on 25 July 2006 the Tribunal affirmed the delegate’s decision.  The applicant claimed to have a well-founded fear of persecution in India by reason of his political opinion as a member of the National Development Front (“the NDF”) who had switched allegiance from the Indian Union Muslim League (“the IUML”).  He claimed to have suffered hostility from the IUML and from Hindu nationalist parties such as the BJP and the RSS.  He claimed to have become a member of the NDF in 1993 and in 2000 to have become the local convenor of that party. 

4. In December 2001, a BJP worker was killed in a clash between the BJP and NDF after the latter had declared a “hartal” or closure of shops and businesses by way of political protest.  Although the applicant was not involved in the death of the BJP worker, he claimed to have been pursued by the BJP as the local committee convenor of the NDF.  Further, the applicant claimed that the deceased man’s family, who were followers of the Community Party of India Marxist (“the CPI(M)”), caused trouble for the applicant by, amongst other things, damaging his shop which he was forced to sell to his employed manager.  Although he then moved to Mumbai, the organisations known as Shiv Sena and VHP were alerted to his new location and continued to threaten him so that, to escape harm, he moved to South Africa.

5. The applicant visited Singapore in February 2004 and the United Kingdom in June 2005.  He had lived in South Africa for two years before travelling to Australia on a visa issued in November 2005 in South Africa. 

   The Tribunal’s decision

6. The Tribunal found that the applicant’s claims were based on religious belief and political opinion. It accepted that he had been a member of the NDF and had witnessed communal clashes in Kerala in December 2001.  However, it did not accept that those clashes had occurred in his area or that anyone had been killed as a result.  The country information to which the Tribunal referred suggested that a hartal had been called by the Democratic Party and possibly the NDF which resulted in violence.  However, the country information also indicated that the applicant’s district remained relatively unaffected.  There was no evidence that anyone had been killed anywhere, let alone in the applicant’s district, whereas it would have been reasonable to expect an incident of that kind to have been reported.  The absence of corroboration in the country information that violence had occurred in the applicant’s district led the Tribunal to find that the applicant had not been involved in communal clashes in his district and had not witnessed, or been blamed for, the murder of a BJP worker.

7. The Tribunal then indicated that, if it were to accept that the communal clashes and the murder of the BJP worker had occurred, it could not accept as credible the applicant’s account of being persistently pursued because of the murder.  Noting that the applicant had been some distance from what he claimed was the murder, the Tribunal considered it to be implausible that he was thereafter blamed and vigorously pursued for it.  Further, there was nothing in the description of the applicant’s profile as local convenor for the NDF to suggest that he would have been a legitimate target of those enraged by the murder.

8. The Tribunal also noted that, for three months after the alleged murder, the applicant did not seek to live elsewhere. As there were no genuine attempts to harm him during that time, the Tribunal was satisfied that the making of any threats against him was merely to intimidate the applicant and that his persecutors did not intend to go through with their threats.  The Tribunal further noted that the applicant’s shop had been damaged but that he did not claim that the damage had caused him significant economic loss.  Moreover, he had been able successfully to sell it. 

9. In the Tribunal’s view these aspects of the claim did not amount to persecution within the meaning of the Refugees Convention.  The Tribunal did not accept that the applicant was genuinely wanted or pursued by Hindi extremists, members of the BJP or CPI(M) or anyone else.  The Tribunal explained in its reasons for decision that it regarded it as unnecessary to consider the issue of relocation but nevertheless addressed it for the sake of completeness and found that it was reasonably open to the applicant to relocate within India.  In the light of the applicant’s profile and activities, the Tribunal thought it not credible or plausible that he would be pursued by his opponents in some region where Muslims predominated.  As the Tribunal rejected the applicant’s core claims, it declined, for the same reasons, to accept that he had been pursued in Mumbai.  The Tribunal had regard, in this context of relocation, to the applicant’s business skills and education.

10. On an overall view of the evidence before it, the Tribunal was not satisfied that the applicant’s claimed fear of persecution in India for reason of his political opinion, religious beliefs or any other Convention reason was well founded.  It found that the applicant was not a refugee and refused to grant a visa to each applicant.

    The decision of the Federal Magistrate

11. On 11 September 2006 the applicant applied to the Federal Magistrates Court for an order of review of the Tribunal’s decision.  Before the learned Federal Magistrate, the applicant claimed to have been denied procedural fairness because the Tribunal had found that his claims were fabricated without undertaking a proper investigation.  Rather, it had made the decision quickly and had not considered the real facts.  In an application filed on 12 December 2006 the applicant asserted that the Tribunal had contravened ss 424, 430, 439 and 440 of the Migration Act 1987 (Cth) (“the Act”).  Further, it was claimed that the Tribunal had failed to observe the rules of natural justice and had acted in bad faith.

12. The learned Federal Magistrate was satisfied that the applicant had not raised any arguable case for review. Accordingly, he dismissed the application pursuant to Rule 44.12 of the Federal Magistrates Court Rules. His Honour noted that the alleged denial of procedural fairness and the allegation of bad faith had not been particularised. He considered the obligation imposed by s 425 of the Act as discussed in SZBEL v The Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 but found that, in this matter, the applicant had clearly been apprised that the veracity of his claims was in issue. His Honour regarded some of the grounds advanced by the applicant as impermissibly seeking merits review. Moreover, he did not consider that the applicant’s submissions raised an arguable case of legal error or that it was reasonably arguable that the Tribunal had been under an obligation to conduct further investigations for itself.

    The purported appeal to this Court

13. The grounds on which the applicant seeks to set aside the orders of the Federal Magistrates Court were raised in what I have called a purported notice of appeal filed on 5 January 2007.  They were as follows;

    ‘2.The Single judge of the Federal Magistrate Court in his Honours judgment delivered on 19 December 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the judiciary Act 1903.

    3.The grounds of relief is very much similar with a recent High Court judgment - Muin v Refugee Review Tribunal;  Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)

    4.Recent High Court judgment;  Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1

    5.Recent Federal Court of Australia judgment :  AGDB V  Minister for Immigration and Multicultural Affairs.  I will provide more ground after received the judgment.

    6.The grounds and relief is very similar with a recent Federal Court judgment - SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs;

    7.Tribunal made his decision in bad faith.  I was prosecuted [sic] because of my religious believe and member an National Development Front.  I had been targeted by Hindu fundamentalist.  It was very difficult time for me, Hindu militants would pursue me no matter where else I might go in India.

    8.The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM and his honour judgment delivered on 19 December 2006 failed to find the error of law and relief under section 39B of the judiciary Act.

    9.My point is that despite having attended the hearing it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.’

14. The applicant said that his purported notice of appeal had been prepared by a friend who had explained to him the legal issues which it sought to raise.  Although he said that they had been prepared by the same person there was no real correspondence between the grounds in the purported notice of appeal and the applicant’s written submissions filed on 9 May 2007 which the applicant today effectively repeated in support of his application for leave to appeal.

    Disposition of the application for leave to appeal

15. I accept that, as the orders of the Federal Magistrates Court were interlocutory, having been made under Rule 44.12(1)(a) of the Rules of that Court, the applicants must satisfy the test enunciated by a Full Court of this Court in Décor Corporation Pty Limited v Dart Industries Incorporated (1991) 33 FCR 397, at 398. That authority imposes on an applicant for leave to appeal the task of demonstrating that a decision below is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would be done if the impugned decision were allowed to stand. As I indicated in the course of discussion with Mr O’Brien, who appeared for the Minister, I am prepared to assume that the applicants are able to satisfy the second limb of that test because allowing the decision of the Federal Magistrates Court to stand effectively shuts them out from further pursuing relief in respect of the Minister’s refusal to grant them protection visas. That makes it necessary to consider in detail only the first limb of the test in Décor v Dart.

16. It is not necessary for the Court to conclude, refusing to grant an application for leave to appeal on the basis of that limb, that it is clear without argument that the applicant has no case.  As Barwick CJ observed in General Steel Industries Incorporated v The Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129;

    ‘As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.  Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 where he says [at 91] “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse or process.”’

    Then Barwick CJ continued, at 130;

    ‘Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings [(1949) 78 CLR, AT P 84], in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.  On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’

17. That observation, I consider, can be paraphrased to apply to the circumstances of the present case where the learned Federal Magistrate concluded that the applicants’ application should be summarily dismissed only after examination of an extensive kind of the arguments which they sought to advance and the reasons of the Tribunal.

18. I have examined for myself the reasons of the Tribunal and the reasons of the learned Federal Magistrate which I have summarised earlier in these reasons.  That examination effectively excludes any reasonably arguable case that the Tribunal’s decision was founded of any of the species of jurisdictional error which the applicants have tried to identify in their application for review to the Federal Magistrates Court, in their purported notice of appeal to this Court, or in their written outline of submissions filed on 9 May 2007. 

19. It follows, therefore, that the applicants are not entitled to leave to appeal from the orders of the Federal Magistrates Court.  Treating the purported notice of appeal as an application for leave, I shall order that the application be refused with costs.  I shall also order that the name of the first respondent be amended where necessary on the relevant documents to read “the Minister for Immigration and Citizenship” and that the Refugee Review Tribunal be joined as a second respondent.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        17 May 2007

The applicants appeared in person
Counsel for the First Respondent:	Mr B O'Brien
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	15 May 2007
Date of Judgment:	15 May 2007