SZKOZ v MIAC

[2007] FCA 1798

FEDERAL COURT OF AUSTRALIA

SZKOZ v Minister for Immigration and Citizenship [2007] FCA 1798

SZKOZ AND SZKPA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1535 OF 2007

RYAN J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1535 OF 2007

BETWEEN:

SZKOZ
First Applicant

SZKPA
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

20 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicants pay the first respondent’s costs of the appeal.

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 1535 OF 2007

BETWEEN:

SZKOZ
First Applicant

SZKPA
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for leave to appeal filed in this Court on 6 August 2007, seeking leave to appeal from all of the orders made by Driver FM on 16 July 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal);  see SZKOZ v Minister for Immigration and Citizenship [2007] FMCA 1132. The application for leave to appeal has been filed with an affidavit sworn by the first applicant in support of the application to which a draft notice of appeal is attached. The first applicant (“the applicant wife”), is a national of Nepal, and the second applicant (“the applicant husband”), is a national of India.

2. The applicants arrived in Australia on 7 February 2004 and applied for protection visas on 4 March 2004.  A delegate of the first respondent (“the Minister”), refused the application on 23 April 2004 and the applicants sought review by the Tribunal of that refusal.  The Tribunal affirmed the delegate’s decision on 13 February 2005 and that decision was then set aside by order of the Federal Magistrates Court on 27 September 2006.  The Tribunal was reconstituted and reconsidered the application for review. 

   Proceedings before the Tribunal

3. The applicants claimed that they had a well-founded fear of persecution by reason of their political opinion and membership of a particular social group and their religion. 

4. The applicant wife claimed that, as a political activist and member of the Maoist Communist Party, she had been arrested and tortured by security forces who tried to rape her.  Her house in Nepal had been rased in December 2002 and her siblings had been terrorised.  She claimed that the police had told people that they would kill her if she were captured.  She had left for India and married the applicant husband.  She claimed that the Indian police wanted to repatriate her to Nepal and that she would not be protected from persecution in either Nepal or India.  The applicant husband claimed that he had been threatened in India because he was married to a Nepalese Maoist. 

5. The applicants’ claim to fear persecution by reason of their religion was largely based on their conversion to Christianity in Australia.  They said that they had been baptised on 26 March 2006 and claimed to have introduced various people to the Jesus Family Centre, particularly some from Nepalese backgrounds.  They claimed that proselytising is prohibited in Nepal and that active Christians face threats in Nepal and India.  The applicant husband claimed that if he were returned to India he would be persecuted by the Hindu society because he had become a Christian. 

6. The applicants were not accepted as truthful witness by the Tribunal, which found their claims to be implausible. The Tribunal did not accept that the applicant wife was a Maoist or that she had engaged in activities in Nepal in support of the Maoists. Nor did it accept that she feared harm in India or Nepal because of her family’s actual or imputed political activities. The Tribunal therefore did not accept that she had been arrested or detained or had suffered harm. It found that the applicants had obtained a visa to travel Australia and Malaysia and had left India without difficulty. The claim of conversion to Christianity was not accepted as genuine but was rather characterised as an invented claim to assist the applicants’ application for protection visas and was disregarded under s 91R(3) of the Migration Act 1958 (Cth) (“the Act”).

7. By a decision handed down on 12 April 2007, the Tribunal affirmed the refusal of the delegate of the Minister to grant protection visas to the applicants. 

   Proceedings in the Federal Magistrates Court

8. The applicants filed a show cause application in the Federal Magistrates Court on 4 May 2007 and the hearing was conducted by Driver FM on 16 July 2007. 

9. At the hearing the applicants contended that the Tribunal’s decision had been vitiated by jurisdictional error.  The learned Federal Magistrate held that as this ground was not particularised it was meaningless. 

10. The applicants next submitted that the decision of the Tribunal had been made unfairly. However, his Honour noted that the obligations of the Tribunal to observe the rules of procedural fairness must now be read in light of s 422B of the Act. To the extent that this ground was intended to be an allegation of apprehended bias, it was held to be unsupported by any evidence. In relation to their submission that the Tribunal had not considered all aspects of their claims, his Honour asked the applicants to identify what elements or integers of their claims had not been considered by the Tribunal, but they failed to comply with that request.

11. The applicants next contended that the Tribunal had been guilty of a denial of natural justice. The learned Federal Magistrate regarded that contention as the same as an allegation of a want of procedural fairness, which did not add anything to the ground already advanced as described at [10] above.

12. His Honour concluded that the Tribunal had complied with its obligations under the Act to consider the applicants’ claims. In his view, the obligation of disclosure pursuant to s 424A of the Act had not arisen, as all of the information relied upon by the Tribunal to affirm the decision of the delegate had been provided by the applicants themselves or had been general country information. Driver FM went on to observe, at [18] of his reasons;

    ‘… The applicants failed before the Tribunal because, although the Tribunal accepted that Maoists and Christians faced a real risk of persecution in Nepal, and also possibly in India, the Tribunal did not accept that either applicant was a Maoist or Maoist sympathiser or a genuine Christian.  The Tribunal took into account written material submitted by the applicants but discounted it.  In my view, the adverse credibility findings made by the Tribunal were open to it on the material before it.’

13. His Honour found that the Tribunal had properly considered the applicants’ claims by reference to the various reasons for which the Refugees Convention prescribes that a well-founded fear of persecution must exist. 

14. Furthermore, the Federal Magistrate found that the Tribunal had not erred in its application of s 91R(3) of the Act given its finding that the conduct of the applicants in this country had been engaged in to support the applications for protection visas. Accordingly, the learned Federal Magistrate found that the applicants had not identified any arguable case of jurisdictional error. He considered that no other arguable case was apparent on his reading of the material before him and therefore made the following orders:

    ‘(1)The application is dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

    (2)The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).’

    Proceedings in the Federal Court of Australia

15. The applicants filed an application for leave to appeal in this Court on 6 August 2007 together with an affidavit in support.  The application for leave to appeal recites that the applicants rely on grounds set out in the supporting affidavit.  The grounds of the application set out in the affidavit are identical to the grounds of appeal in the draft notice of appeal annexed to the affidavit, and are as follows;

    ‘(a)His Honour erred by not finding that the Second Respondent made jurisdictional error (or alternatively found that there was an arguable case that the Second Respondent made jurisdictional error) in that the Second Respondent did not consider the appellants’ claim based on religion other than to find that the appellants had no satisfied Section 91R(3)(b) of the Migration Act 1958 (“The Act”).

    (b)His Honour erred by not finding that the Second Respondent made jurisdictional error (or alternatively found that there was an arguable case that the Second Respondent made jurisdictional error) by failing to comply with the requirements of Section 424A of the Act.

    Particulars

    At page 19.5 of the reasons for decision of the Second Respondent the Tribunal relied upon information to affirm the decision under review that:

    (a)The appellants obtained visas for both Australia and Malaysia and left India without difficulty;

    (b)The appellants’ adviser confirmed that the appellants left India without difficulty in his submission to the previous tribunal, after the hearing before that tribunal.’

    In written and oral submissions to this Court, Mr Young of Counsel for the applicants has indicated that they no longer press ground (b) in their draft notice of appeal. 

16. By their application, the applicants acknowledge that leave to appeal is required by O 52 r 10 of the Rules of this Court and apply for an order that compliance with O 52 r 5(2) be dispensed with.  Order 52(5) provides;

    ‘(1)This rule applied only to applications where an appeal from the judgment lies to the Court only with leave.

    (2)      An application should be filed within 21 days after -

    (a)       the judgment was pronounced; or

    (b)a later date fixed for the purpose by the court or judge who pronounced the decision.

    (3)Where an application is not filed within the time limited by subrule 2 an order shall be sought in the application that compliance with subrule 2 be dispensed with.’

    The need for dispensing with compliance with O 52 r 5(2) is not canvassed in written submissions filed on behalf of the Minister.  In my view, such a dispensation is not necessary as the application was filed within 21 days from the date on which judgment was pronounced in the Federal Magistrates Court.

17. The applicants contend that the Tribunal’s decision was infected by jurisdictional error to be discerned in its finding that it was not open to the applicant husband to assert that he could not return to India because he was a Christian and India is a Hindu society, when he did not become a Christian until 2006.

18. Mr Young for the applicants has pointed to the Tribunal’s consideration at p 16 of its reasons of s 91R(3) of the Act which, it is accepted, requires the Tribunal to disregard conduct in Australia unless satisfied that it was not engaged in for the purpose of strengthening a person’s claims to be a refugee. The applicants submit that, at p 17 of its reasons, the Tribunal erred in disregarding for the purpose of s 91R(3) certain conduct engaged in by the applicants in Australia. They refer in this context to the fact that the Tribunal did not make any findings that the applicants would not live as Christians if they returned to India or Nepal, and to its acceptance that they have been baptised as Christians and have attended discipleship training and spoken about the Bible and Christianity.

19. The applicants further submit that the Tribunal’s finding that it was not satisfied in terms of s 91R(3) did not preclude it from considering whether there was a real chance that the applicants would be persecuted as Christians if they returned to Nepal or India. This, the applicants submit, would have involved consideration of whether they would practise the Christian religion in Nepal or India.

20. According to the applicants, the Tribunal failed to consider, except in the context in s 91R(3), any claim to fear persecution by reason of their religious beliefs. In written submissions, Mr Reynolds for the Minister has contended that the applicants have failed to satisfy either of the two tests articulated by a Full Court of this Court in Dai Rong-Hua v Telecommunications Industry Ombudsman (2000) FCA 717 at [9] which repeats the test erected by another Full Court of this Court in Décor Corporation v Dart Industries Inc (1991) 33 FCR 397. On behalf of the Minister, it has been contended that the applicants, having expressly abandoned ground 2 of their draft notice of appeal, are confined to ground 1 which was not raised below.

21. As leave to raise it on appeal has not been sought or granted, the Minister argues that leave should not be granted to pursue an appeal invoking this new ground. Moreover, the Minister submits that the application below did not raise an arguable case and the learned Federal Magistrate was correct to dismiss it pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules. As the applicants have abandoned the ground of appeal which formed the basis of the application below, it was said to have been open to the learned Federal Magistrate to dismiss the matter pursuant to r 44.12(1) and that the first limb of the test in Décor Corporation v Dart Industries Inc cannot be satisfied.

22. The Minister next contends that, in any event, the ground now sought to be agitated on appeal is without merit because it is not correct that the Tribunal considered only in the context of s 91R(3) of the Act the applicants’ claims to fear persecution by reason of their Christianity. That error was said to be manifest in the applicants’ contention that the Tribunal made no finding that the applicants would not live as Christians if they returned to India or Nepal. The Minister referred to p 16 of the Tribunal’s reasons where it is expressly recited;

    ‘… the Tribunal does not accept that that the applicants are genuine Christians and does not accept that they will practise Christianity if they return to India or Nepal.’

23. That negative finding was said to have been recognised in the following passage of the reasons of the Federal Magistrates Court, where his Honour said, at [5];

    ‘The Tribunal did not accept that the applicants are genuine Christians, or that they would practise Christianity if they returned to India or Nepal.’

24. Similarly, at [18] of his reasons, the learned Federal Magistrate recited;

    ‘The applicants failed before the Tribunal because, although the Tribunal accepted that Maoists and Christians faced a real risk of persecution in Nepal, and also possibly in India, the Tribunal did not accept that either applicant was a Maoist or Maoist sympathiser or a genuine Christian.’

25. The Minister therefore seeks orders that leave to appeal be refused and that the applicants pay the Minister’s costs. 

    Disposition of the application

26. The learned Federal Magistrate dismissed the application below pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001, which provides;

    ‘(1)At a hearing of an application for an order to show cause, the Court may:

    (a)if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application.’

    Rule 44.12(2) specifically states that;

    ‘In order to avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.’

27. As the order from which the applicants seek to appeal is interlocutory, the applicants must first seek, and be granted leave, to appeal as required by s 24(1)(A) of the Federal Court Act 1976.  In order to obtain leave to appeal, the applicants must show, first, that, in all the circumstances, the decision of the Federal Magistrate on 16 July 2007 is attended by sufficient doubt to warrant its reconsideration on appeal and, secondly, that substantial injustice would result if leave were refused supposing the decision below to be wrong;  see Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398-399 where a Full Court of this Court applied the test formulated by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Limited [1978] VR 431.

28. After a careful reading of the material, I am not persuaded that the decision of the learned Federal Magistrate of 16 July 2007 is attended by sufficient doubt to warrant its reconsideration on appeal. It is true that s 91R(3) leaves it open to a person to persuade a decision-maker without reference to conduct in Australia that the person has a well-founded fear of persecution in another country by reason of his or her religious beliefs. Thus the person may rely entirely on past persecution for that reason in the country of origin. However, if the acquisition of the relevant religious belief or political opinion has occurred entirely in Australia, then in my view, s 91R(3) is necessarily engaged. The applicant must satisfy the decision-maker that his or her conversion has been brought about otherwise than for the purpose of strengthening the applicant’s claim to be a refugee.

29. If there is a failure to discharge that evidentiary onus, then the claim must fail.  Even if the decision-maker accepts that the conversion, although it occurred for the disqualifying purpose, is genuine and would persist and attract persecution in the applicant’s country of origin or in a relevant third country.  In the present case, in any event, the Tribunal expressly declined to accept the genuineness of the applicants’ conversion.  It said, at p 16 of its reasons;

    ‘… In addition, the Tribunal does not accept that the applicants are genuine Christians and does not accept that they will practise Christianity if they return to India or Nepal.  The Tribunal finds that they have invented this claim to assist their applications for protection visas.  The Tribunal finds against the applicants in relation to their claims because it does not accept that they have given truthful evidence to the Tribunal.’

30. That was a finding that was made before the Tribunal’s consideration of the application of s 91R(3) and was open to the Tribunal on an assessment of the applicants’ credibility. That finding explains why the Tribunal did not explore whether the applicants, if returned to India or Nepal, were likely to engage in such overt manifestations or expressions of their claimed Christian belief as to attract persecutory attention. It may be that the Tribunal could have explored these difficult philosophical and essentially subjective issues and their relation to s 91R(3) in a different order. However, the Court is enjoined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272 not to examine the language of decisions of the Tribunal overzealously to infer jurisdictional error from mere infelicities of language. The same restraint, I respectfully suggest, must be exercised in any scrutiny of the order in which the Tribunal has arranged its examination of the issues.

31. I consider that the inquiries which the applicants were entitled to have undertaken into the effect of their claimed religious beliefs were foreclosed by the positive finding set out above that their conversion to Christianity was not genuine.  As the applicants have not satisfied the first limb of the test set out in Décor Corporation v Dart Industries Inc (supra), it is not necessary for me to consider the second limb.  It follows that the application for leave to appeal must be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        22 November 2007

Counsel for the Applicant:	Mr J R Young
Solicitor for the Applicant:	Simon Diab & Associates
Counsel for the First Respondent:	M P Reynolds
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007