SZKKG v Minister for Immigration & Citizenship

[2007] FCA 1768

FEDERAL COURT OF AUSTRALIA

SZKKG v Minister for Immigration & Citizenship [2007] FCA 1768

SZKKG AND SZKKH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1195 OF 2007

JESSUP J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1195 OF 2007

BETWEEN:

SZKKG
First Appellant

SZKKH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The name of the respondent endorsed on the Notice of Appeal be amended to the Minister for Immigration and Citizenship.

2.Upon the respondent Minister by his counsel undertaking promptly to inform the Refugee Review Tribunal of the making of this order, pursuant to O 52 r 14(2) the Refugee Review Tribunal be added as the second respondent to the appeals.

3.The appeals be dismissed.

4.The appellants pay the costs of the respondent Minister fixed in the sum of $1,400.

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	NSD1195 OF 2007

BETWEEN:

SZKKG
First Appellant

SZKKH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT

1. Before the court are two appeals from a judgment of the Federal Magistrates Court given on 7 June 2007 to dismiss applications for reviews of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 9 February 2007 and handed down on 1 March 2007, in which the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants protection visas pursuant to the Migration Act 1958 (Cth) (“the Act”).

2. According to the findings of the Tribunal, the appellants are citizens of India and are husband and wife.  The husband, who is the first appellant, claimed before the Tribunal that he had a well-founded fear of persecution, which was the reason he was outside the country of his nationality, and that that fear came within the terms of Article 1A(2) of the Refugees Convention.  His wife, the second appellant, made no separate claim under the Convention, but relied upon the claims of the first appellant on the basis that, as his dependant, if his claims were successful, hers would be likewise.  She did not appear before me this morning to prosecute her appeal.  However, I was assured by the first appellant that his wife was aware of today’s proceedings; and I am separately satisfied of that circumstance from a perusal of the correspondence which was sent to her by the court.  The first appellant informed me that his wife made no separate claim under the Convention for herself, but relied upon the disposition of his own claim. 

3. The first appellant’s Notice of Appeal contains the following three grounds:

   1.A write of Mandamus second Respondent (Tribunal) Re determine the application for a protection visa in accordance with Law such further or other orders as to the Court seen fit.

   2.The appellant appeals from the whole of the judgment of given on SCARLET FM at 7 June 2007.

   3.The RRT erred in failing to consider all claims and issues put forward by me.

   Manifestly, these grounds are not proper grounds of appeal in relation to the judgment of the Federal Magistrate given on 7 June 2007.  The first appellant did not file any written submissions in support of his appeal, although he told me this morning that he sent them by post.   He was unable to provide me with a copy of the submissions said to have been sent by post, and Ms Manson who represented the respondent Minister, told me that her client had not been served with any written submissions.  However that may be, the first appellant presented his case before me this morning orally, and, given the problematic nature of the grounds of appeal set out in his Notice of Appeal, it is by reference to those oral submissions that I shall dispose of his appeal. 

4. The first appellant’s submissions were concerned with one complaint only about the way the Tribunal dealt with his application for review.  He said that, towards the end of the Tribunal hearing, he had wanted to add something further to the information which he had already provided to the Tribunal in response to its questions, but that the Tribunal had not permitted him to do so.  When I pressed him to indicate what it was that he had proposed to say to the Tribunal, he said that there were two things.  First, he said that he wanted to inform the Tribunal that his life was at risk in India because of threats which were made to him when he went there in 2004.  He told me that his visit to India in 2004 was the most recent occasion upon which he had experienced threats of the kind upon which he would have relied before the Tribunal.  Secondly, he told me that he would, if he had been given the opportunity, have asked the Tribunal member what was the most effective way for him to satisfy her of elements of his factual case which might lead to a favourable outcome on his application for review.

5. If the matters which the first appellant now seeks to agitate were dealt with before the Federal Magistrate, they must have been tangential to say the least.  The grounds upon which he relied in his amended application filed in the Federal Magistrates Court on 15 May 2007, were lengthy and detailed.  In his reasons for judgment, the Federal Magistrate dealt with every one of them.  There is no hint of an indication in those grounds that the first appellant sought to make a complaint against the Tribunal of the kind which he has raised with me in court this morning.  As Ms Manson for the Minister submitted, the closest those grounds come to the first appellant’s now point, is in one of a series of particulars to paragraph 13 of the grounds, namely:

   The RRT erred in failing to consider all claims and issues put forward by the applicant.

   That was a particular to a ground which was in the following terms:

   The Tribunal made a jurisdictional error by misdirecting itself as to the nature of its role and duties, responsibilities.

   Quite clearly, the point which the first appellant seeks to raise this morning, even if otherwise sound, would not be one of misdirection of the kind referred to in Ground 13. 

6. It seems that the first appellant, who represented himself before the Federal Magistrate, may have said something to him along the lines of his submission this morning.  In par 40 of his reasons for judgment the Federal Magistrate said:

   The Applicant also claims the Tribunal erred in failing to consider all claims and issues put forward by the Applicant.  If he is referring to the fact that he sought to make a further claim to the Tribunal after the hearing had closed, there is no evidence by way of a transcript to support that.  In my view, the Tribunal decision shows that the Tribunal did consider the applicant’s claims.

7. The point which the first appellant now seeks to make is one which required an evidentiary foundation about the course of the proceedings before the Tribunal.  A place to establish that evidentiary foundation was the Federal Magistrates Court and the person required to do it was the first appellant.  As the Magistrate noted, that was not done, and there has been no attempt in this court to make good that omission.  I am not prepared to act merely upon the first appellant’s statements from the bar table that the Tribunal, in effect, cut him off when he sought to supplement the information which he had already provided.

8. I would add that the two respects in which the first appellant says that he would have sought to supplement the information provided by him to the Tribunal do not appear to give rise to any concerns of substance, as distinct from form.  As I have indicated above, when I invited the first appellant to state what were the matters that he would have drawn to the Tribunal’s attention, the first matter referred to was the threats which were made to him when he returned to India in 2004.  It is clear from the Tribunal’s statement of the claims and evidence which it had before it, and from its findings and reasons, that the Tribunal was fully aware of the nature of the claims which the first appellant made in this regard, including the fact that he claimed to have been threatened in India in 2004.  In its written decision the Tribunal refers to circumstances of that kind at some length and in some detail.  There is, I consider, no substance in the suggestion that the first appellant did not have the opportunity to make out his case before the Tribunal in relation to these events of 2004 upon which he relied.

9. The second matter which the first appellant indicated he desired to put before the Tribunal was not any further information at all but, rather, in the nature of a question to the Tribunal seeking to secure advice as to how it might best be persuaded of the validity and merit of the first appellant’s case.  It is hard to know how the Tribunal might in fact have responded to such an inquiry had it been put to it, but it is difficult to see how any response would have resulted in procedural unfairness to the extent necessary to give rise to an error of jurisdiction.  There was otherwise no suggestion that the Tribunal did not consider all the material which the first appellant provided, or did not give the first appellant an opportunity to state in his own way, all the factual elements of the case which he then sought to make out. 

10. The jurisdiction which this court exercises is an appellate one, and the first task of any appellant must be to satisfy the court that the court below made an error.  I have carefully read the reasons for judgment of the Federal Magistrate, and I am unable to perceive any error in the way in which he went about his task.  The first appellant for his part made no attempt to demonstrate error on the part of the Federal Magistrate.  Relevantly to the particular point which he sought to agitate today, the Federal Magistrate took what I consider to be the only proper course in the circumstances facing him, namely, to observe that he had before him no evidence such as might support a claim of that kind.  That was then, and it remains, not only a sufficient but also an appropriate way for a point of this kind to be resolved. 

11. In the circumstances, I propose to dismiss both of the appeals. 

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

Associate:

Dated:        16 November 2007

Counsel for the Appellants:	The first appellant appeared on behalf of the appellants
Counsel for the Respondent:	Ms A Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007