SZJJX v Minister for Immigration and Citizenship

[2007] FCA 1271

FEDERAL COURT OF AUSTRALIA

SZJJX v Minister for Immigration & Citizenship [2007] FCA 1271

SZJJX AND SZJJY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD912 OF 2007

JESSUP J
8 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD912 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJX
First Applicant

SZJJY
Second Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	8 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applications for leave to appeal be dismissed.

2.The applicants 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	NSD912 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJX
First Applicant

SZJJY
Second Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	8 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court are two applications for leave to appeal from a judgment of the Federal Magistrates Court delivered on 2 May 2007 dismissing amended applications for writs of certiorari, prohibition and mandamus directed to the respondent Minister and the Refugee Review Tribunal (“the Tribunal”) in relation to a decision of the Tribunal given on 7 August 2006 affirming a decision of a delegate of the respondent Minister to refuse applications for protection visas pursuant to s 36 of the Migration Act 1958 (Cth) (“the Act”). The Federal Magistrate dismissed the applications before him pursuant to the power of summary disposal given to that court under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are husband and wife. The applicant husband has appeared before me this morning and made submissions in support of his application for leave to appeal. The case was conducted before the Tribunal and the Federal Magistrates Court on the basis that it was his situation, if anything, that gave rise to circumstances which would attract the operation of s 36 of the Act and that the applicant’s wife’s claims depended upon those of her husband by reason of the operation of par (b) of subs (2) of that section. I shall refer to the applicant husband as the applicant.

3. According to the written decision of the Tribunal, the applicant is a citizen of India who arrived in Australia on 17 February 2006.  He based his claim for a visa upon what is said to be a well-founded fear of persecution by reason of his religion, namely that he is a Hindu.  He said that, after riots which followed an incident on a train in India in 2002, he was part of a local organisation which went to inspect the area, in the course of which a Hindu man attacked a Muslim man.  The applicant believed that the Muslims who witnessed this attack thought that he had been a party to it.  The applicant said that the Muslims attacked him in the store which he rented at the time, and burned the stock which he had at the store.  He told the Tribunal that the store was subsequently rebuilt, but a few months later he gave up the lease and went to work in a factory.  He said that between then, and the time when he came to Australia in early 2006, he had been subjected to telephone threats by his adversaries and that he had not been able to stay at his own home, but had moved around, staying at the homes of various friends.  He said that he did not have the courage to overcome the losses of the attack in 2002 and the death of his father, and for that reason could not relocate to another Indian city such as New Delhi, Calcutta or Mumbai. 

4. The Tribunal appears to have been prepared to accept the applicant’s evidence that he had been present with a group of other Hindus on the occasion of the inspection of the site of the train incident when a Muslim man was attacked.  However, the Tribunal rejected the applicant’s proposition that, as a result of having been present on that occasion, he was effectively hounded and threatened by the Muslims for a number of years thereafter.  The Tribunal said that it found the applicant’s evidence to be unconvincing.  It continued:

   In the light of the unrest that occurred following the Godhra train incident, the Tribunal is prepared to accept that the applicant’s store was attacked in 2002 and destroyed.  However, the Tribunal finds as implausible, and does not accept, that he would be pursued for some four years following what, in his own evidence, was only a marginal association with the Godhra train incident.  The Tribunal finds as unconvincing that he could be continually “phoned” with threats while at the same time claiming he was continually relocating to friends’ homes to avoid those he claims wished to harm him.  Indeed, if the police already knew the identities of his attackers, he could again have approached the police to report this harassment.

5. The Tribunal went on to propose another basis for affirming the decision under review, namely, that if the applicant did feel threatened as he claimed, it would have been reasonable in the circumstances for him to relocate to some other city.  The Tribunal was not convinced by the applicant’s explanation that he lacked courage to relocate, given that he had been able to relocate to Australia, albeit, according to the Tribunal, “a country where he might have family support”.  The Tribunal said:

   In the light of his ability to find employment in a factory following his abandonment of the lease to his shop, the Tribunal finds he could find similar work in any of the above named cities in India. 

   As a result, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. 

6. In his application to the Federal Magistrates Court, the applicant relied upon two grounds. The first was that the Tribunal failed to assess his fears of harm according to the refugee criteria and misapplied his claims, thereby failing to evaluate those fears in accordance with s 91R of the Act. It appears that what the applicant meant by this rather generally expressed ground was that the Tribunal had been in jurisdictional error to conclude that he had had only a marginal association with the Godhra train incident and to base its subsequent findings upon that conclusion. The applicant referred in his ground to the finding of the Tribunal that he had given evidence that he had been present when the Hindu man attacked the Muslim man and cut him and that he had said that the Muslims thought he was one of them (the companions of the Hindu man). In the ground, the applicant submitted that the Tribunal failed to consider that vital information given in his evidence before it. The Magistrate found that the Tribunal had assessed the applicant’s fears of harm and had reached conclusions of fact properly open to it. He pointed out that the Tribunal’s finding was that the applicant did not in fact fear harm and, therefore, did not have to proceed to a characterisation of that harm under s 91R of the Act.

7. Having read the decision of the Tribunal, I agree with the Magistrate in these respects, and I would add only that the applicant sought to attack the Tribunal’s finding that his association with the Godhra train incident was no more than marginal.  This attack, in my view, was not one which could be made in an application of the kind that the applicant brought in the Federal Magistrates Court.  The finding was, in part, a purely factual one and, in part, a matter of assessment and judgment by the Tribunal, to whom such questions are assigned by the legislation.  The Tribunal’s comment on the matter of a marginal association was a conclusion of a factual kind, entirely within its jurisdiction.  The kind of issue which the applicant sought to take with that conclusion, did not, in my view, come close to forming a proper basis for a submission that there was a constructive failure to exercise jurisdiction of the kind that would be required to sustain an application of the nature made by the applicant in the Federal Magistrates Court.

8. The second ground upon which the applicant relied in his amended application in the Federal Magistrates Court was that the findings of the Tribunal had been tainted with bias because of the comparison inherent in the following paragraph of its decision: 

   The Tribunal found his explanation of why he did not want to do this – being that he lacked “courage”, to be unconvincing given the fact that he has been able to relocate to Australia, albeit a country where he might have family support.  In the light of his ability to find employment in a factory following his abandonment of the lease to his shop, the Tribunal finds he could he could find similar work in any of the above named cities in India. 

9. The applicant submitted in the Federal Magistrates Court that he belonged to a particular social group in India, namely Gutarati, and, therefore, according to principles which he described as the Rhandhawa principles, the Tribunal could not have assumed that he could have effectively relocated due to the many language, cast, cultural and religious sensitivities and conflicts in abundance in India, contrary to the situation in Australia.  The Magistrate dealt with the matter of bias by saying that there was nothing to show that the Tribunal had approached the matter with a closed mind, and that there was no ground for a reasonable apprehension of bias.  From my reading of the decision of the Tribunal, I entirely agree with the Magistrate’s assessment in this regard. 

10. The Magistrate went on to deal with the point which the applicant then made about being a member of a particular social group, but for reasons which shall appear in a moment, I am not required to enter upon a consideration of such matters. 

11. In his Draft Notice of Appeal in this court, the applicant has substantially repeated the two grounds which he advanced before the Magistrate.  He has supported those grounds with written submissions filed on 24 July 2007. 

12. In relation to the first ground, the applicant’s submissions attempt to give jurisdictional significance to the matters which he raises in two respects. He says first that the Tribunal did not instruct itself according to the “real chance” test established in the cases; and he says secondly that the Tribunal did not properly apply the criteria set out in s 91R(2) of the Act. I consider there is no substance in either of these criticisms of the Tribunal or by implication of the judgment of the Magistrate. In part, I have already expressed my agreement with the relevant sections of that judgment. I should add that it is apparent from the earlier sections of the Tribunal’s written decision that it did properly instruct itself according to the “real chance” test, and there is nothing in the deliberative aspects of its decision which would indicate any departure from that test. As I said above, I do not think this case had anything to do with s 91R of the Act, as the essence of the Tribunal’s finding was that it did not accept that the events to which the applicant referred had in fact befallen him, or that he had any proper basis for a fear of persecution.

13. The bias ground in this court was developed a little by the applicant asserting, in his Draft Notice of Appeal, that he did not in fact relocate to Australia, that he has no relatives in Australia and that he did not abandon his lease.  As to the third of these aspects, it is put in the Draft Notice that the lease, by which I take it the applicant means the store, was burnt rather than abandoned.  These propositions seem to be nothing more than an attempt to put in issue findings of fact made by the Tribunal wholly within its jurisdiction.  Insofar as they relate to the point of bias, I am bound to say that they betray a misunderstanding of the concept of bias in the law.  Bias is not concerned with factual mistakes or with respects in which one of the parties might have a basis, even a legitimate basis, for saying that the Tribunal of fact got something wrong to his or her disadvantage.  Bias is concerned with an apprehension which the reasonable observer might have that the Tribunal of fact came to its task with a pre-judgment, or with an impermissible interest one way or the other.  Nothing in the facts of the present case gives the slightest indication that the Tribunal was biased in that sense.  I cannot find anything wrong with the way in which the Magistrate dealt with this point. 

14. Those are the only two grounds in the Draft Notice of Appeal.  Although the written submissions of the applicant, in some respects, range a little wider and more generally than the matters to which I have referred in these reasons, I have considered everything which is contained in them and I do not think that there is any basis advanced upon which I could find an arguable error in the way in which the Federal Magistrate disposed of the application which was before him.

15. In the circumstances, I am not persuaded that the decision of the Magistrate is attended with sufficient doubt to warrant its reconsideration on appeal.  To the contrary, I agree completely with the way in which the Magistrate disposed of the application which was before him.  Nothing which has been put by the applicant, and nothing which otherwise appears from my own perusal of the papers, discloses any error in his Honour’s approach.  Although I accept that, if the decision below were considered to be wrong, substantial injustice would result because of the nature of the application which the applicant makes and the circumstances in which he finds himself.  Nonetheless, I have had sufficient exposure to the materials upon which the present application for leave is based to reach the firm conclusion that the decision below is free from error.  Under those circumstances, it is impossible to see how the applicant might suffer substantial injustice as a result of the dismissal of the present application. 

16. For the above reasons I propose to dismiss the application of the applicant; and it follows that his wife’s application should be dismissed likewise.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        20 August 2007

Counsel for the Applicants:	The applicants appeared in person
Counsel for the Respondents:	Mr P Reynolds
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	8 August 2007
Date of Judgment:	8 August 2007