SZLKW v Minister for Immigration and Citizenship

[2008] FCA 1272

FEDERAL COURT OF AUSTRALIA

SZLKW v Minister for Immigration and Citizenship [2008] FCA 1272

SZLKW and SZLKX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 825 OF 2008

BUCHANAN J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 825 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKW
First Appellant

SZLKX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	19 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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 825 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKW
First Appellant

SZLKX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	19 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellants are husband and wife who arrived in Australia on 22 March 2007 and applied for protection (Class XA) visas on 27 April 2007.  The second appellant’s claim depends upon her status as the spouse of the first appellant. 

2. The first appellant, in a document attached to his application for a protection visa, described the following circumstances.  He was born in 1978 and was 28 years old when he arrived in Australia.  When he was 19 years old his mother became bedridden.  The cost of medical treatment for her was high and she eventually died in October 2006.  The appellants married in 1995.  They bought a house with the benefit of a loan but in January 2001 the house was destroyed in an earthquake.  With the help of friends they bought a new house but had incurred a substantial debt.  In riots in February 2002 the first appellant’s shop was burnt.  He started a new shop with the assistance of borrowings from friends but the business encountered difficulties.  He and his wife began to receive visits from debt collectors.  The first appellant was assaulted.  The appellants became afraid. 

3. The first appellant’s account concludes in the following way:

   ‘We heard about Australian visa.  So we had applied for that.  We were praying God that please show us good way to live life fearlessly and happily.  And we think that this is His blessings that we are here.

   We kindly request you please consider our problems seriously and cover us under protection visa.’

4. On its face, the claims as advanced at this time did not invoke any satisfactory basis for the grant of a protection visa.  The claims for visas were rejected by a delegate of the first respondent (‘the Minister’) on 19 May 2007.  The delegate made the following findings:

   ‘3.3.1I have perused the applicant’s file and there is nothing disclosed in the applicant’s claims which indicates that the harm he faces on return to India arises from any of the five Convention reasons.  The applicant does not fear harm as a consequence of his race, religion, nationality, membership of a particular social group or political opinion.  Instead, the claims made by the applicant relate specifically to personal financial problems unrelated to any of the five reasons set out in the Convention.’

   (Bold in original)

   and:

   ‘3.3.2… I note that citizens of India enjoy freedom of movement with [sic] the country.  In the event that the applicant does not wish to return to his home in Gujarat, then I consider that relocation on return to India is a viable option for the applicant.’

5. On 12 June 2007 the appellants applied to the Refugee Review Tribunal (‘the RRT’) for review of the delegate’s decision.  They were invited to attend a hearing before the RRT on 13 August 2007.  The decision in due course made by the RRT, which was handed down on 11 September 2007, records that only the first appellant appeared.  He had the assistance of an interpreter in the Gujarati language, as he had sought.  The decision of the RRT gives a detailed account of discussions with the first appellant and a comprehensive explanation why the RRT was not persuaded that any difficulties the appellants might face in India constituted a reason which would justify the grant of protection visas.  The conclusion reached by the RRT appears sufficiently from the following passage in its decision:

   ‘The applicant claims that he cannot return to India because he fears that he will be harassed or killed by the people to whom he owes money.  Again, it is not implausible to suggest that if the applicant owed money which he could not repay, he may be subject to harassment or even assault.  However there is no evidence to suggest that the applicant would not receive the protection of the law and the police if it were sought.  The applicant is a Hindu, living in the state of Gujarat which has an overwhelming Hindu majority and governed by a political party, the BJP, which has strong Hindu sympathies.  The Tribunal cannot therefore be satisfied that the applicant’s fear is well-founded.  Furthermore, the Tribunal is not satisfied that the harm the applicant may face on return to India arises from any of the five Convention reasons.  The applicant and/or his family have borrowed money to purchase a house or business, or to pay for the health costs incurred by his mother.  At various points in time it appears that he and his family have been able to repay those debts before accumulating more.  The latest debt for which the applicant claims he is liable and unable to pay was accrued to purchase a business which subsequently failed.  The applicant claimed that the people to whom he owned [sic] money sent some people to attack him and try to kill him.  The applicant did not claim that the people to whom he owed money were of a particular race, religion, country of origin or nationality nor that they were persecuting him for reasons of his race, religion, country or origin, nationality or political opinion, but simply because he owed them money.’

6. These conclusions, and the decision of the RRT to affirm the decisions of the delegate to refuse the protection visas, were not open to any form of judicial review unless the RRT, in its decision or in the processes it followed, committed jurisdictional error. 

7. On 4 October 2007, the appellants made an application to the Federal Magistrates Court of Australia (‘the FMCA’) for judicial review of the RRT.  On 28 May 2008 the FMCA dismissed the application for judicial review (SZLKW and Anor v Minister for Immigration and Anor [2008] FMCA 738). The grounds advanced in an amended application for judicial review suggested that the RRT had misunderstood the terms ‘well founded fear’ and ‘refugee’, that it had identified the wrong issues and failed to consider relevant material, relying instead on irrelevant material and that the RRT had denied the first appellant procedural fairness.  None of these contentions have any apparent substance and they were each rejected by the FMCA. 

8. The appeal to this Court, filed on 4 June 2008, from the decision of the FMCA advanced the following ground of appeal:

   ‘1.       His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when it adopted an unduly harsh approach to the well-founded fear.  The Federal Magistrate failed to hold that the Tribunal misconstrued the test.  The applicant has arguable case.  It has failed to carry out the real chance test as required by the law.  The Appellant claims that the Muslims destroyed his first shop in February 2002.  He lost his business because of his religious belief being a Hindu and association with the Hindu Organizations.  The extremist Muslims of the area and his show [sic] were again burnt by the extremist Muslims threatened him his wife.  The Appellant claims that the Tribunal did not account the dangers from the extremists Muslims.  The Hon. Magistrate failed to find the merit of the case and made decision.  The appellant claims that he was denied procedural fairness.’

9. In written submissions filed shortly before the hearing of the appeal the appellants stated:

   ‘The Appellants argue the validity of the decision on mainly two grounds as stated during the hearing in the Federal Magistrate.

   First ground alleges a jurisdictional error in that the Tribunal failed to assess the applicant’s fear of harm and misapplied the law – this affected the Tribunal’s application of the law.  The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why he would be harmed rather than addressing to the motive.

   The second ground alleges a jurisdictional error in that the Tribunal failed to properly assess the appellant’s claims, became biased due to misunderstanding the evidence – this affected the matters considered and not considered by the Tribunal.’

10. The accompanying arguments may be reduced to a contention that the RRT was wrong to reject the first appellant’s factual assertions.  The character of the argument appears sufficiently from the following two passages:

    ‘Appellant submits that the rejection of the appellant’s evidence was based upon findings of credit, which in turn were based on conclusions of fact upon which there was no proper basis.’

    and:

    ‘There is no proper basis for the rejection of the appellant’s evidence.  Appellant submits that it is simply arbitrary rejection of the evidence without any factual basis underpinning the rejection.

    The erroneous findings and mistaken conclusion affected the Tribunal’s exercise of power, giving rise to an error of law and jurisdictional error.’

11. These assertions do not show any error, much less jurisdictional error, by the RRT in its consideration of the material before it. 

12. At the hearing of the appeal the second appellant was not present.  The first appellant responded to an invitation to make oral submissions by relying upon the written submissions I have already referred to.

13. At each relevant stage, the appellants’ claims have been assessed by reference to the terms in which they made them.  There is no basis to conclude that the RRT misunderstood any of the matters it was required to consider.  The various challenges which have been made to the decision of the RRT have not revealed any jurisdictional error. 

14. No error has been identified in the decision of the FMCA.  No jurisdictional error has been identified in the decision or processes of the RRT.

15. The appeal must be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        19 August 2008

The First Appellant appeared in person.
Counsel for the First and Second Respondents:	Ms L Clegg
Solicitor for the First and Second Respondents:	Sparke Helmore

Date of Hearing:	11 August 2008
Date of Judgment:	19 August 2008