SZKUJ v Minister for Immigration and Citizenship

[2008] FCA 1351

FEDERAL COURT OF AUSTRALIA

SZKUJ v Minister for Immigration and Citizenship [2008] FCA 1351

Migration Act 1958 (Cth) s 474

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SZKUJ v Minister for Immigration and Anor [2007] FMCA 2016
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

SZKUJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2414 OF 2007

MCKERRACHER J
4 SEPTEMBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	NSD 2414 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKUJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	4 SEPTEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the costs of the first respondent to be taxed if not agreed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	NSD 2414 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKUJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	4 SEPTEMBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a Federal Magistrate delivered on 22 November 2007 (SZKUJ v Minister for Immigration and Anor [2007] FMCA 2016). By that decision his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 24 May 2007. The Tribunal had affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of India.  He arrived in Australia on 9 January 2007.  On 22 February 2007 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs (the Department).  A delegate of the first respondent refused the application on 6 March 2007.  On 2 April 2007 the appellant applied to the Tribunal for review of that decision and on 24 May 2007 the Tribunal affirmed the decision of the delegate refusing to grant a protection visa to the appellant. 

   THE APPELLANT’S CLAIMS

3. The appellant claims to fear persecution in India because of his relationship with a young woman from Mumbai.  He claims that his family and her parent’s family did not approve of the relationship.  He also claims that his own family were not willing to assist him after his partner’s family found out about the relationship and he was beaten by associates of his partner’s brother, who, it is claimed, is an ‘underworld figure’. 

   BEFORE THE TRIBUNAL

4. The Tribunal found that the appellant is not a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention). 

5. The Tribunal accepted that the appellant is a citizen of India, he was in a relationship with a young woman, that her family did not support the association and that his family had rejected him due to that relationship. 

6. However, the Tribunal found the appellant’s difficulties in India were unrelated to the Convention and that he was not subjected to a risk of harm for a Convention reason.  It was satisfied that as the relationship that caused him difficulties was over, he was no longer a person of interest to the persons he feared. 

7. Further, the Tribunal was satisfied on the basis of country information that the appellant could access protection provided by the state even if the perpetrator was an ‘underworld figure’.  It found that India could provide a reasonable standard of protection consistent with international standards.

8. The Tribunal therefore affirmed the decision of the delegate not to grant a protection visa to the appellant.

   ON REVIEW BY THE FEDERAL MAGISTRATES COURT

9. In his application, the appellant reasserted his claims of ‘Serious harm’, ‘Economic hardship’ and ‘Physical harassment’.  An affidavit filed on 20 June 2007 also asserted that the Tribunal did not act in good faith and that the decision was not reasonable.  At the hearing before the leaned Federal Magistrate, the appellant also claimed that the Tribunal had not looked at his case properly and had reached a wrong decision.  Also asserted (by affidavit) was the submission that the decision ‘exceeds the limit set out in the Commonwealth constition (sic)’ and he wanted ‘the relief of time from F.M.C.’. 

10. The learned Federal Magistrate held that the grounds in the application and submissions sought merits review.  His Honour considered the points raised in the affidavit but noted that failure to act in good faith was an allegation that must be clearly proved and was not made out in the appellant’s case.  The Tribunal had considered the evidence and the conclusions were logically open to it.  The decision was clear and logical and there was no irrationality.  His Honour also held that the Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) concept of unreasonableness was not applicable to the decision as there was no discretion exercised.

11. As to the further issues submitted at the hearing before the learned Federal Magistrate, his Honour noted that a proper reading of the Tribunal’s decision record shows that the Tribunal understood the appellant’s claim and gave it appropriate consideration.  His Honour also found that the allegation that the Tribunal reached a wrong decision was an allegation that was ‘no more than an invitation to revisit the merits of the application which was before the Tribunal’ and for reasons he had already expressed regarding merits review found that ‘the Court cannot do this and this allegation does not justify a finding of jurisdictional error on the part of the Tribunal’. 

12. His Honour therefore dismissed the application for review. 

    GROUNDS OF APPEAL

13. The notice of appeal relies upon the following grounds:

    ‘1.       Serious harm;

    2.       Economic Hardship;

    3.Humanity request for life stopping physical harassment which could lead to continuous persecution.’

14. At the hearing of the appeal before me the appellant submitted that he should be given another year or two to live in Australia so that he could avoid his genuine fear of being killed if he returned to India.  He submitted that by that time after an extended period, those who intended to cause him harm would be less focussed on that issue.  He did not otherwise address the grounds of appeal. 

    ANALYSIS

15. The learned Federal Magistrate was correct in his analysis of the nature of the grounds concerned.  His Honour observed that none of the grounds disclose an issue from which jurisdictional error might be discerned.  In essence they simply invited the Federal Magistrates Court to undertake a review of the merits of the appellant’s claim to be entitled to a protection visa.  As his Honour observed, the Court is not empowered to do that.  His Honour observed that the proceedings which were for judicial review engaged the Court in a role of determining whether there has been something in the Tribunal’s conduct of the review or the expression of its decision which amounts to jurisdictional error.  His Honour stressed that it was not open to the Court to review on the basis of the merits of the claim, the conclusions reached by the Tribunal.  He contended that it was not a situation in which the findings of the Tribunal were not open to it because there was no evidence to support those findings. 

16. In my view the approach taken and the conclusions reached in the Federal Magistrates Court were entirely correct.  No error of any nature on the part of the Court has been demonstrated.

17. The effect of s 474 of the Migration Act 1958 (Cth) (the Act) is that a decision of the Tribunal can be set aside by the Federal Magistrates Court or on appeal by this Court only if the Tribunal’s decision involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76].

18. The learned Federal Magistrate held correctly that the findings made by the Tribunal were open to it on the material which was before it.  It was open to the Tribunal to accept the appellant’s claim that he had been mistreated by his partner’s family but to also conclude that the harm he suffered was unrelated to the Refugee’s Convention and that he was not likely to be subjected to harm for a Convention reason.  In light of the nature of the claims which were made by the appellant, that conclusion was not only open but it was the only conclusion open to the Tribunal.  No submission was made at any stage by the appellant that the treatment he suffered was because of his political opinion, race, religion, nationality or membership of a particular social group.  None of the claims made or evidence presented to the Tribunal had the capacity to suggest there was any such Convention nexus. 

    CONCLUSION

19. It follows that as all the grounds fail, the appeal should be dismissed and the appellant should pay the costs of the first respondent to be taxed if not agreed. 

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

Associate:

Dated:        4 September 2008

The appellant represented himself
Counsel for the First Respondent:	P Macliver
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	28 August 2008
Date of Judgment:	4 September 2008