SZKPL v Minister for Immigration and Citizenship

[2007] FCA 1740

FEDERAL COURT OF AUSTRALIA

SZKPL v Minister for Immigration and Citizenship
[2007] FCA 1740

SZKPL, SZKPM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1579 OF 2007

RARES J
24 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1579 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKPL, SZKPM
Applicants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	24 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicants pay the first respondent’s costs fixed in the sum of $2,000.

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 1579 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKPL, SZKPM
Applicants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	24 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court:  SZKPL v Minister for Immigration [2007] FMCA 1244. His Honour dismissed the applicants’ claim for constitutional relief pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the application did not raise an arguable case for the relief claimed.

2. The applicants are husband and wife.  The husband has appeared before me today and has told me that he is representing his wife’s interest as he has both before his Honour and the tribunal.  His wife applied for her protection visa on the basis of the claims made by her husband and had no independent claims.

3. Essentially, the applicants, who are citizens of the Republic of India, arrived in Australia on 18 September 2006 and applied for protection visas in late October 2006.  After their applications were refused by a delegate of the Minister, the tribunal decided on 26 March 2007 to affirm the decisions not to grant them protection visas.  It did so on the basis that it accepted that the husband genuinely feared persons associated with the People’s Democratic Party and other persons who were described as Muslim Rowdies and Gundas who may have been involved in a number of attacks of which the husband had personal experience which gave rise to his fear.

4. The tribunal found that although that fear was genuine, it did not accept that it was well-founded.  In reaching that conclusion, it found that no one, apart from the People’s Democratic Party in 2001, had demonstrated any interest in the husband for a considerable period of time.  The tribunal also considered it significant that the husband had been living in a town for two years before he came to Australia and in that period had not been harassed, approached or otherwise harmed by the persons whom he feared, in circumstances where he lived in his house and operated his own business, although from time to time moved about India in that period.

5. The tribunal found that if the husband had, indeed, been a person of interest to any of the persons in respect of whom he held the genuine fears the tribunal found, they would have demonstrated some interest in him during this most recent period.  The tribunal accordingly found that it was mere speculation by the husband that he was a person of interest to the parties and persons he feared in India or that those parties or persons were seeking to harm him at the time he departed from India for Australia.  Accordingly it found that there was mere speculation on the part of the husband that any of those parties or persons would seek to harm him in the reasonably foreseeable future.

6. The second basis on which the tribunal decided to affirm the decision to refuse protection visas was that if the husband’s personal safety were threatened in the future, he would have access to protection by the authorities of the Republic of India.  The tribunal found that India provided a reasonable level of protection for its citizens and was satisfied that the husband would have access to that protection if he required it in the future.  It concluded that although he had a genuine fear, it was not a well-founded fear of persecution in India for a Convention reason.  Accordingly, having failed to satisfy the necessary conditions for the issue of a protection visa neither he nor his wife had satisfied the tribunal that they were entitled to have such a visa granted to them.

7. His Honour considered the tribunal’s reasoning and procedures and concluded that the reasoning was well open on the evidence before it.  He observed, correctly in my opinion, that the assessment of risks facing the husband in India in the future was essentially a matter for the judgment of the tribunal and that on the material before him there was no arguable jurisdictional error affecting the tribunal’s decision-making process in that respect.

8. The applicants had filed shortly before the hearing below an amended application.  That contained ten paragraphs which may fairly be summarised as amounting to detailed arguments going to the merits of the tribunal’s fact finding or making further arguments as to why, despite its findings, the applicants should have been granted protection visas.

9. His Honour dealt with the amended application by saying that none of that material cast doubt on the ultimate conclusions of the tribunal.  He observed that it was not clear whether some or all of the information had been provided by the applicants to the tribunal.  But, in any event, he found that the points raised in the amended application went only to the merits of the tribunal’s findings and did not raise any arguable basis on which a jurisdictional error by the tribunal could be identified.  He concluded that the tribunal clearly did address the then claims made by the applicants to be refugees.  I agree with his Honour’s conclusion.

10. Ultimately, his Honour found that it was not the task of the court to assess the merits of an applicant’s claims for protection visa. That is clearly so. The court’s role is to consider whether the tribunal exercised the jurisdiction provided in s 414 of the Migration Act 1958 (Cth) to review the decision made by the Minister or his or her delegate in accordance with law.

11. The applicants prepared written submissions in support of their application for leave to appeal.  In essence, they identified the following asserted errors:

    1.The tribunal made contradictory findings because it accepted that the husband genuinely feared those whom he identified but failed to uphold the claim, and failed to apply the real chance test with regard to future serious harm in s 91R(1) and (2) of the Act.

    2.The tribunal failed to take into account relevant considerations, namely the arguments in the amended application to which I have already referred. They also asserted that his Honour erred in the way in which he dealt with dismissal of those grounds in the judgment by not giving sufficient reasons. In essence, again, they argued that the tribunal had not exercised its function of review under s 414 of the Act.

    3.Provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) had not been followed.

12. While neither the Federal Magistrates Court nor this court has jurisdiction in reviewing privative clause decisions under the Administrative Decisions (Judicial Review) Act (see s 476(3) of the Act and s 476A(1)), two matters on which the applicants relied constitute, in substance, jurisdictional errors for the purposes of the grant of constitutional writ relief;  they being that the tribunal took into account an irrelevant consideration or failed to take into account a relevant one.

13. In my opinion, the application for leave to appeal has no reasonable prospect of success.  I am unable to detect any basis on which it could be suggested that the tribunal committed a jurisdictional error in its assessment that the husband, while having a genuine fear of the persons whom he identified, did not have a well-founded fear or that the Indian authorities would not offer him a reasonable level of protection should he require it in the future so as to attract some obligation of Australia under the Refugees Convention to provide the applicants with protection visas here.

14. The grounds on which the applicants have argued failed to raise an arguable case of error.  First, s 91R required the tribunal in coming to its decision to consider the character of the harm identified.  I am of opinion that there is no basis to suggest that the tribunal failed properly to apply the provisions of s 91R;  nor have the applicants identified any basis upon which it can be said that the tribunal failed to have regard to any relevant considerations or took into account irrelevant ones.  Rather, I am of opinion that, having reviewed the tribunal’s decision, it does not disclose any such error and that none of the grounds in the amended application or the written or oral arguments of the applicants before me identify any basis upon which such a ground could be established.

15. For the reasons that I have given, the tribunal properly discharged its obligation to review the applicants’ claims for protection visas in accordance with law.  I am not able to detect any basis upon which it could be argued that the tribunal committed a jurisdictional error in the way in which it approached its task in this case.  Moreover, I am not able to identify any error which his Honour made in his function of assessing whether an arguable claim was made out so as to cast doubt upon his decision to dismiss the proceedings summarily.

16. An application for leave to appeal from a judgment of a court must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 at [29] per McHugh, Kirby and Callinan JJ. In my opinion, neither of those bases has been established in this case.

17. The application for leave to appeal should be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 November 2007

The Applicants appeared in person:
Solicitor for the Respondent:	B O’Brien of DLA Phillips Fox
Date of Hearing:	24 October 2007
Date of Judgment:	24 October 2007