SZLJV v Minister for Immigration and Citizenship

[2008] FCA 1307

FEDERAL COURT OF AUSTRALIA

SZLJV v Minister for Immigration and Citizenship [2008] FCA 1307

SZLJV and SZLKG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 984 OF 2008

COWDROY J
26 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 984 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJV
First Appellant

SZLKG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	26 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellants pay the costs of the First Respondent in the amount of $2,000 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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 984 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJV
First Appellant

SZLKG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	26 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from a decision of Federal Magistrate Nicholls delivered on 27 June 2008: see SZLJV v Minister for Immigration and Citizenship and Anor [2008] FMCA 833. Such decision dismissed an application for Constitutional writ relief seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 13 September 2007. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant Protection (Class XA) visas to the appellants.

   BACKGROUND

2. The appellants who are husband and wife are citizens of India. They arrived in Australia on 22 March 2007 and on 27 April 2007 the appellant husband (‘the appellant’) lodged an application for a protection visa with the Department of Immigration and Citizenship. The appellant wife made no independent application but relied on the claims of the appellant as a member of his family unit. A delegate of the Minister refused the application for a protection visa on 19 May 2007. On 8 June 2007 the appellant applied to the Tribunal for a review of that decision.

3. Before the Tribunal the appellant claimed to fear persecution in India resulting from a commercial dispute. The appellant, a Hindu, had allegedly arranged for the sale of ‘oil seeds’ to a ‘muslim customer’. The appellant claimed that despite making numerous requests, the Muslim customer refused to pay for the seeds. The appellant claimed that the Muslim customer and ‘his men’ assaulted and threatened the appellant. The appellant claimed that his employment ceased although he had borrowed money to reimburse his employer for the seeds. The appellant claimed that he was advised by his friends to leave India ‘for sake of my life’.

   THE TRIBUNAL DECISION

4. The Tribunal did not accept that the appellant’s claims had a nexus to the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (‘the Convention’). The Tribunal was unable to find any relationship between the alleged conduct and any basis under the Convention which would entitle the appellant to protection. The Tribunal further noted that the appellant did not claim to have sought to avail himself of state protection. Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

   APPLICATION IN THE FEDERAL MAGISTRATES COURT

5. By application filed in the Federal Magistrates Court of Australia on 27 September 2007 (‘the original application’) and by amended application filed on 11 January 2008 the appellant sought judicial review of the Tribunal’s decision.

6. The grounds relied upon in the original application claimed that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (‘the Act’), made an error of law, denied the appellant procedural fairness and denied the appellant natural justice. The amended application claimed that the Tribunal wrongly applied s 91R of the Act, breached s 424A of the Act and fell into jurisdictional error.

7. Nicholls FM, having considered the written submissions filed for the appellant, found that no breach of s 424A(1) existed. The appellant claimed that the Tribunal had failed to put to him ‘certain adverse information used by the Tribunal to affirm the decision under review’. His Honour noted that no particulars were provided identifying the ‘certain adverse information’. Insofar as the Tribunal relied upon evidence provided by the appellant, Nicholls FM observed that such evidence was excluded from the operation of s 424A of the Act by s 424A(3)(b). His Honour also referred to the decision in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 in finding that the Tribunal was under no obligation to inform the appellant of its thought processes in reaching its decision.

8. In considering ground two of the original application, which alleged error of law and a denial of procedural fairness, Nicholls FM observed that s 422B of the Act applied to the proceedings before the Tribunal. His Honour noted that the appellant had been invited to attend a hearing before the Tribunal and had done so. His Honour could find no evidence of any breach of ss 424A or 425 of the Act. His Honour referred to the reasoning of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 in holding that there was no evidence of any breach of procedural fairness.

9. As to the third ground in the original application, his Honour noted that the denial of natural justice was said to arise because the Tribunal had allegedly failed to provide the appellant with further time to produce ‘other evidences’. His Honour noted that neither the documents which the appellant provided to the Court nor the appellant’s testimony identified the nature of such ‘other evidences’. His Honour observed that the Tribunal’s letter of invitation to attend the hearing invited the appellant to put before the Tribunal any ‘new information’ by a particular date. Nicholls FM rejected the third ground of appeal.

10. Nicholls FM rejected the first ground of the amended application. His Honour observed that nowhere in either the appellant’s protection visa application or in his evidence to the Tribunal had the appellant given any evidence which would give rise to an obligation on the part of the Tribunal to consider whether the appellant was a member of any particular social group. Nor was there any evidence to indicate that the appellant feared harm because of his political opinion. Accordingly his Honour found that the Tribunal had not erred in its application of s 91R of the Act.

11. The second ground of the amended application had already been rejected by his Honour (see above). The third ground of the amended application was described by his Honour as ‘confused’. His Honour observed that the Tribunal had dealt with the appellant’s claims and observed that the business transaction and the claimed consequences did not reveal any Convention nexus. Such was a finding clearly open to the Tribunal: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and Nicholson JJ.

12. His Honour considered other claims made orally by the appellant, including an allegation of bias on the part of the Tribunal. His Honour observed that the appellant had not satisfied the heavy onus of proof which attends an allegation of bias: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. Further, his Honour observed that the Tribunal’s decision record can rarely establish bias by the Tribunal: see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

13. Nicholls FM accordingly dismissed the appellant’s application for judicial review.

    APPEAL TO THIS COURT

14. By notice of appeal filed on 2 July 2008 the appellant appeals from the decision of Nicholls FM raising one ground, namely:

    His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when it misunderstood or misconstrued the term “religious belief” as it appears in the United Nations Refugee Convention. The Refugee Review Tribunal failed to appreciate that applicant suffered harm at the hands of Muslim opponents only because of his religion (Hindu). The Tribunal did not understand the applicant’s fear of harm and misapplied the law – affected the Tribunal’s application of law. The Tribunal failed to assess the cumulative effects of separate incidents related with his claim for Protection Visa.

15. The appellant filed written submissions on 20 August 2008, namely the day of the hearing before this Court. Such submissions claim that Nicholls FM failed to hold that the Tribunal ‘failed to assess impartially whether the appellant’s claims for the protection visa comes under the ambit of United Nations Refugee Convention’. The submissions assert that the appellant’s fear of harm was not understood ‘in the context of his religious belief being a Hindu’. The appellant also claims that the Tribunal made a jurisdictional error ‘when the Tribunal misunderstood the appellant’s claims for real chance of fear’. The appellant also submits that the Tribunal ‘misunderstood the meaning and concluded that there was not [sic] suggestion from the applicant that his failure to avail himself of state protection from the harm he fears was for a Convention reason’.

16. The submissions of the appellant also claim that there was a denial of procedural fairness. The appellant claims that he was denied the opportunity ‘to get final bill from India which was given by the appellant to Muslim Customer in relation to the transaction that he conducted with him. To establish the credibility it was important for appellant to present before the Tribunal. The Tribunal did not give time. The hearing was conducted on 22 August 2007 and decision was made on 24 August 2007’.

    FINDINGS

17. The Court observes that the appellant’s claims relating to religious persecution were considered by Nicholls FM. In his findings relating to the appellant’s claim that the Tribunal had committed jurisdictional error (ground three in the appellant’s amended application before him), Nicholls FM said:

    Further, in relation to the applicant’s reference to the trader as a “Muslim”, and his status as a “Hindu”, the Tribunal squarely addressed this issue in its analysis (CB 73.7), and found that the applicant had not provided any other indication that the business difficulties with the trader related to, or stemmed from, religion. This again was open to the Tribunal to find on what was before it.

18. Nicholls FM did not err in concluding that such a factual finding was open to the Tribunal.

19. Insofar as the notice of appeal asserts that the Tribunal did not understand the appellant’s fear of harm and misapplied the law, such unparticularised claims are too vague to constitute a meaningful ground of appeal. No apparent error of law exists in the Tribunal decision and the Court finds that the Tribunal both understood and considered the appellant’s claims. The Court rejects this ground of appeal.

20. Finally, the appellant’s notice of appeal alleges that the Tribunal ‘failed to assess the cumulative effects of several incidents related with his claim for Protection Visa’. No particulars have been provided and in the absence thereof the Court rejects such ground.

21. Although not referred to in the notice of appeal, the written submissions of the appellant claim that he was denied the opportunity to obtain the ‘final bill from India’. This issue was raised before the Federal Magistrate who observed that the letter sent to the appellant inviting him to attend the hearing specifically drew attention to the opportunity to provide any ‘new information’ to the Tribunal. The Tribunal decision also records that it had asked the appellant whether he wished to provide any further information to the Tribunal. The Court accordingly finds that the Tribunal had afforded the appellant an opportunity to provide the Tribunal with the ‘final bill’.

22. However, the Court concurs with the Tribunal in observing that even if the bill had been produced it would not have assisted the appellant in establishing any nexus with the Convention. As was emphasised by Nicholls FM, the Tribunal did not dispute the appellant’s claim that the transaction had taken place between the appellant and the Muslim customer. Rather, the reason for the Tribunal’s rejection of the appellant’s claim for protection resulted from the Tribunal’s finding that there was no nexus between such transaction and the Convention. The Tribunal found that there was no basis for a fear of persecution for a Convention reason.

23. There is no error in either the Tribunal’s conduct of its review or in its findings.

24. The written submissions also allege bias in claiming that the Tribunal ‘failed to assess impartially whether the appellant’s claims for the protection visa comes [sic] under the ambit of United Nations Refugee Convention’. The Court observes that an allegation of bias must be distinctly made and clearly proved: see Jia Legeng at 531. In the absence of particulars in support of the appellant’s allegation, the Court rejects such submission.

25. For the above reasons the Court finds that neither the Federal Magistrate nor the Tribunal fell into error. The appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        26 August 2008

Counsel for the Appellants:	The Appellant appeared in person.
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	20 August 2008
Date of Judgment:	26 August 2008