SZLMZ v Minister for Immigration and Citizenship

[2008] FCA 1203

FEDERAL COURT OF AUSTRALIA

SZLMZ v Minister for Immigration and Citizenship [2008] FCA 1203

Migration Act 1958 (Cth) s 425

Minister for Immigration v Eshetu (1999) 197 CLR 611 cited
Buck v Bavone (1976) 135 CLR 110 cited
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 cited

SZLMZ and SZLNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD644 OF 2008

LOGAN J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD644 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLMZ
First Appellant

SZLNA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	6 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellants are to pay the First Respondent’s costs of and incidental to the appeal which are fixed in the amount of $2300.

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	NSD644 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLMZ
First Appellant

SZLNA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	6 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellants are citizens of India.  The Appellants came to Australia last year and lodged with the Department of Immigration and Multicultural Affairs on 1 May 2007 an application for a type of visa under the Migration Act 1958 (Cth) known as a protection (class XA) visa. That application was considered by a delegate of the Minister who is the First Respondent in the present appeal. The delegate on 15 May 2007 decided to refuse to grant to the Appellants’ protection visas.

2. As was their right, on 7 June 2007, the Appellants applied to the Refugee Review Tribunal (“Tribunal”) for the review by that Tribunal of the Minister’s delegate’s decision not to grant them protection visas.  On 6 September 2007, the Tribunal decided to affirm the decision made by the Minister’s delegate not to grant to the Appellants a protection visa.  That decision was communicated to the Appellants under cover of a letter from the Tribunal to them dated 2 October 2007.  That letter enclosed not just the formal decision of the Tribunal but also the reasons given in writing by the Tribunal for the decision.

3. The Appellants then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 24 April 2008 for reasons which were then published that Court dismissed their judicial review application.  In turn the Appellants have appealed to this Court.  There are three grounds identified in the notice of appeal, which are as follows:

   1.His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well founded fear.  The Tribunal misapplied the express and implied meaning of term “Well-founded fear and Refugee from the UN Convention in relation to applicant’s fear of persecution.  The Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes prosecution as a member of a particular social group and due to his political opinion persecution.  The Appellant’s claim was based on his religious belief.

   2.Hon. Federal Magistrate failed to hold that the Tribunal has filed to carryout the real chance test as required by the law but has resorted to balance of probabilities and other types of tests.

   3.The Appellant claims that there was certain information used by the Tribunal to make decision. The Appellant was not provided opportunity to comment. The Tribunal made a jurisdictional error when it did not disclose the information in accordance with s 424A(1) of the Migration Act. [sic]

4. The male Appellant appeared today to argue the appeal on his own behalf and also, as I understood it, on behalf of his wife.  He had earlier lodged with the Court in accordance with directions made, a written outline of submissions, again on behalf of himself and his wife.  I have considered the outline thus lodged as well as the oral submissions made to me today on behalf of the Appellant.  Those submissions were noteworthy for their candour. 

5. Another feature of the oral submissions was that they did extend beyond what were strictly the written grounds of challenge as identified in the notice of appeal.  A similar expansion of the basis of challenge appears to have occurred before the Federal Magistrate, in the sense that there were grounds of review advanced orally which did not feature in the application to that Court.  It seems that before the Federal Magistrates Court the Minister adopted what was, in the circumstances, the humane course of dealing with informally raised grounds of review, as well as those formally raised in responding to the judicial review application.  A similar course has been adopted before me on behalf of the Minister.  For that reason I shall make reference to other bases of challenge which seemed to be of concern to the Appellants, apart from the formal grounds of appeal. 

6. The background to the claim advanced for protection visas arises from the particular circumstances in which the male Appellant claimed to have found himself as a result of a defalcation by the six persons employed in a jewellery business which he conducted.  In short, the claim which he made was that the employees had stolen the stock of that jewellery business valued at some 3.3 million rupees.  That stock, so the protection visa claim related, consisted of jewellery paid for in advance by his customers, as well as jewellery which he had purchased with his own capital.  The result, so the claim related, was an inability on the part of the male Appellant to supply the jewellery for which prepayment had been made or to repay his customers.  Certain of those customers, so the claim related, were men of the Muslim faith who pressured him to repay what he owed them.  The Appellant is a Hindu. 

7. The Appellant also made reference to his having been arrested for failing to repay his debts, that he thought of suicide after being forced from his home and that his wife had been threatened with kidnap.  His evidence before the Tribunal was that he was fearful of returning to India.  He claimed that his and his wife’s lives were at risk.  The female Appellant’s claim for a protection visa was not advanced on a separate factual foundation but rather was inextricably bound up with the claims advanced on behalf of the male Appellant. 

8. It is evident from the Tribunal’s reasons that not all of the evidence given by the Appellant in the oral hearing that the Tribunal extended to him, was accepted by the Tribunal.  The Tribunal’s reasons disclose a quite rational and logical basis for the findings of fact that the Tribunal came to make.  Those findings culminated in the following conclusion of fact which appears in the Tribunal’s reasons (appeal book page 86):

   The Tribunal is not satisfied that the harm suffered by the applicant in India was or his fears of future harm are for the reason of his religion, imputed political opinion, membership of the particular social group of his father’s family or any other convention reason.  The applicant repeatedly stated at the hearing that his Muslim creditors wanted to recover their money at any cost and the Tribunal finds that the essential and significant reason behind the applicant’s experiences at the hands of his Muslim creditors and his fears in relation to them is his debt and the fact that his creditors wanted their money back.

   Ground 1

9. Ground 1 of the grounds of appeal makes reference to an alleged adoption by the Tribunal of a “harsh approach” to well-founded fear and to an alleged misapplication of the meaning of the term “well-founded fear” in the Refugee Convention.  As to the latter, the Tribunal’s reasons contain under the heading “Definition of Refugee” what seems to me to be an accurate summary of principle on that subject.  In turn that summary of principle seems to me to have underpinned the conclusions that the Tribunal came to make, having regard to the facts that it found.  In other words, insofar as ground 1 seeks to challenge the Magistrate’s decision on the basis of a failure to hold that the Tribunal had misapplied what in law might amount to a refugee, that ground is, in my opinion, without substance.

10. As to the alleged “harsh approach” it is useful to recall, in my opinion, observations made by Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 651, para 130:

    The “jurisdictional fact” upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term.  The precondition or criterion may consist of various elements and whilst the phrase “jurisdictional fact” is an awkward one in such circumstances it will, for convenience be retained in what follows.  In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker.  Section 65 of the Act is an example.  The prosecutor was entitled to the grant of a visa only if the Minister were “satisfied” that the prosecutor answered the description in section 36(2).

11. His Honour is there referring to particular sections in the Migration Act 1958 which remain pertinent.  Later in that same case, having referred with approval to observations made by Gibbs J (as he then was) in Buck v Bavone (1976) 135 CLR 110 as to ways in which satisfaction-based decisions might be amenable to judicial review, Gummow J observed at page 654, para 137:

    This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

12. Those remarks seem to me to be apposite in the circumstances of this case.  There were findings of fact, in part, based on questions of credibility.  They seem to me to be findings that were reasonably open.  That is not to say that another person hearing that same evidence might not have come to a different view.  Whilst I can well understand that the Appellant might regard the findings made as indicative of a “harsh approach,” in terms of legal principle, if those findings were reasonably open, it was incumbent on the part of the Federal Magistrate and is incumbent upon me to respect those findings and not interfere with them.

    Ground 2

13. Ground 2 in the notice of appeal appears to conflate what might be described as a shorthand description of a test which informs an assessment as to whether a fear of persecution for a Convention reason is “well-founded,” with a standard of proof that applies in civil proceedings in a court.  The Tribunal though was not a court, but rather part of the Executive Government of the Commonwealth charged with reviewing on the merits a decision of another official of the Executive Government, namely the Minister’s delegate.

14. In that review and in relation to the engendering of the “satisfaction” for which the statute made provision, it was obviously in the interest of a visa applicant to introduce material, which would engender the requisite “satisfaction.”  In this case, as it happened, the male Appellant, who was the person who gave evidence before the Tribunal, did not engender through that evidence the requisite satisfaction.  That, though, as I have said, was a product of credibility findings that were in my opinion, reasonably open for reasons that were not irrational or illogical on the part of the Tribunal.

15. What followed from the findings of fact that the Tribunal came to make, was an absence of satisfaction that the persecution claimed by the Appellants was for a Convention reason.  The consequential finding that there was no entitlement to a protection visa flowed automatically from this finding of a lack of satisfaction. 

    Ground 3

16. Ground 3 in the notice of appeal alleges that the Tribunal used particular information without affording opportunity to comment, contrary to s 424A of the Migration Act.  As was pointed out on behalf of the Minister in submissions, an immediate difficulty with this ground, which was not cured in oral submissions on behalf of the Appellants, was an absence of particularisation of just what the “information” used by the Tribunal was. 

17. In oral submissions in respect of this ground, the male Appellant referred to a finding on the part of the Tribunal to allow him to identify his fear. That though did not amount to a particularisation of the “information” which ought to have been put to him and his wife. In dealing with s 424A, the learned Federal Magistrate made reference to what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at para 18. It was there observed that “information”:

    “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

18. Regard to that passage and to the Tribunal’s reasons shows that there was no occasion for the Tribunal before making its decision to send to the Appellants a notice identifying information so as to comply with s 424A.

    Other grounds

19. There were other grounds advanced in oral submissions. Reference was made to confusion on the part of the male Appellant in the proceeding before the Tribunal and to translation difficulties. As the Federal Magistrate rightly apprehended s 427 of the Migration Act required the Tribunal to provide an interpreter when a visa applicant was unable to give evidence without one. The learned Magistrate at para 32 of his reasons cites authority pertinent in that regard. His Honour also appreciated that an absence of adequate interpretation of proceedings might yield a violation of s 425 of the Migration Act in that the hearing conducted by the Tribunal would not be “real and meaningful.”  Again, at para 32 of his Honour’s reasons, pertinent authority for this proposition is cited.

20. As the learned Magistrate rightly apprehended however, to make out such a challenge very particular evidence is needed.  None was offered by the Appellants in the proceedings before the Federal Magistrate.  And there was nothing before me which would in any way have engendered a consideration of whether fresh evidence on such a subject could, or should, be allowed to be advanced on the hearing of the appeal. 

21. There was also reference before me and it seems before the Federal Magistrate, to the nature of the hearing opportunity which was extended to the Appellants by the Tribunal. That opportunity in the end took the form of a hearing via video link from the police station at Griffith. That opportunity had been extended by the Tribunal after the male Appellant had signified to the Tribunal a difficulty based on illness in attending in person at Sydney. The appeal book contains in it a note by an officer of the Tribunal prior to the video link hearing to ask whether the male Appellant was attending the hearing tomorrow. According to the note he confirmed that he would be attending. There is nothing in that note, or in the Tribunal’s reasons, to indicate that either when that contact was made, or at the hearing itself, any difficulty in relation to the Appellant’s wife’s attendance based on a fear of being present at a police station was put forward. Nor, it should be stated, is there any reference in the Tribunal’s reasons of any complaint being voiced about the quality of interpretation which was offered at the hearing. Instead, in terms of evidence, one is left to look to the Tribunal’s reasons, which do not on their face disclose any difficulty being noted either in respect of the attendance of the female Appellant or in translation. Section 425 of the Migration Act certainly requires when it is sought the extension to a visa applicant of a real and meaningful hearing.  On the evidence, and I emphasise on the evidence, this is what the Tribunal did in this case. 

22. In short then, whether one approaches this matter by reference to the formal grounds of appeal or other matters of complaint which emerged in the course of oral and written submissions on behalf of the Appellants, there is no merit in the challenge made to the decision of the Federal Magistrates Court.  The appeal must therefore be dismissed.

23. The orders that I make formally are:

    1.The appeal is dismissed.

    2.The Appellants are to pay the First Respondent’s costs of and incidental to the appeal which are fixed in the amount of $2300.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:
Dated:        14 August 2008

Counsel for the Appellants:	The Appellant appeared in person
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	6 August 2008
Date of Judgment:	6 August 2008